Criminal Law

• Author: Hoctor, S.
• Published date: 28 March 2022
• Date: 28 March 2022
• Pages: 270-292

270

1. INTRODUCTION

The year under review included a number of sign ificant legal developments.

Perhaps the most notable of these in the legislative context is the pas sing

of the Cybercrimes Act,1 which has yet to commence, and which i nstitutes

an extensive new codified set of off ences that seek to address the wave of

crimina l misconduct carried out on computers or over the Internet. T his

legislation has been sorely lack ing in South Afr ican law, which has lagged

behind internat ional legal developments in this regard. It is hoped t hat as

crimina ls continue to use innovative onli ne methods of unlawfu l conduct,

the regulation of cyberc rime will be more proactive th an in the past, and

ongoing legal developments in this area a re therefore essential.

In respect of case law, the Constitutional Court h as handed down two

important decisions t hat resonate within substantive crimina l law in South

Africa. The concept of establish ing guilt by means of imputation, in terms of

which a person may be liable for a crime even if t hat person has not strictly

satisfied all the re quirements for crim inal liabilit y, remains controversial.

Any diminution of the str ict standard of proof for crimi nal liability, which

safeguards indiv idual liberty, necessarily attract s scrutiny and critic ism.

However, liability by means of imputation may play a valuable role:2

Imputation doctri nes … are usefu l devices for modify ing and

enlarging l iability for a broad range of c rimes without alteri ng the

definition of each i ndividual crime. In general, imputation doct rines

will be defensible to t he extent they permit liabilit y in conditions that

are analogous to the o ccurrence of the imputed element, sig nificantly

* BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (Wales Trinity Saint David); Professor

of Law, Department of Public Law, Stellenbosch University; Advocate of the High Court of

South Africa. ORCID: https://orcid.org/0000-0002-5012-6491.

1 19 of 2020.

2 AM Diloff ‘Imputation and exculpation’ in CB Gray (ed) The Philosophy of Law – An

Encyclopedia (1999) 393.

Criminal LawCriminal Law

Shannon Hoctor*

2020/2021 YSAL 270

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CrImINAL LAW 271

increase deter rence, or enable prosecutors to overcome spe cific fact-

finding li mitations ….

Common purpose is just such a doc trine of imputation. In the l ight of the

critique of common purpose for enabl ing a finding of cr iminal li ability

despite a failure to establish a causal nexu s between the individual accused

and the harmf ul result, along with a concomitant ta int arising from t he

extensive use of the doctri ne in the fina l decade of apartheid rule in group

violence cases with an inev itable political subtext, many predicted the

demise of the doctri ne on grounds of principle and ideology. But, instead, a

few decades into a democratic South Africa, the com mon purpose doc trine

is in rude good health. The doct rine has been assessed to be con stitutionally

sound by the Constitutional Cour t in S v Thebus,3 and w idely employed

in the courts in r ecent times. The Constit utional Court in S v Tshabalala4

affirmed not only t he validity and usefu lness of the common pur pose

doctrine, but extended its application into a previously contested realm: t hat

of autographic crimes, where the crime can b e committed only th rough the

instrumenta lity of a person’s own body. The context for this judgment was

the erstwhile common-law cr ime of rape, and the court sought to send an

unequivocal message about the need to apply the law to address the scou rge

of gender-base d violence.

The second Constitutiona l Court decision, Economic Freedom Fighters

v Minister of Justice and Correctional Services,5 also dea lt with an issue that

is always prominent and in need of ongoing sc rutiny, namely the right

to freedom of expression,6 and in par ticular the impact of t he incitement

offence on this right. The m ajority of the court concluded that the breadth of

the prohibition constituted an u njustifiable limitation on the s16 right, and

held that the offence (which the majority ack nowledged to be necessary)

should be limited to incitement to comm it ‘serious’ offences. There are a

number of difficult ies with this approach, however, as discussed below,

not least the lack of clarity about the qua lifier ‘serious’. If the legislature

deems a social evi l significant enough to cr iminal ise it, does the fact of

crimina lisation in itself not constitute an ack nowledgement of ‘seriousness’?

In any event, the guidance given by the majority i n this regard is not exactly

helpful, and it will be up to the legisl ature to bring clarity where the major ity

judgment has muddied the waters. The minority judgment, which re jected

the constitutional c hallenge to the incitement offence, is by contrast a model

of cla rit y.

3 S v Thebus 2003 (2) SACR 319 (CC).

4 S v Tshabalala 2020 (2) SACR 38 (CC).

5 Economic Freedom Fighters v Minister of Justice and Correctional Services 2021 (1) SACR 387

(CC).

6 S 16 of the Constitution.

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