Strict liability in South African criminal law

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 1-22
• Citation: (2002) 15 SACJ 1
• Author: CRM Dlamini
• Published date: 24 May 2019

ARTICLE • ARTIKEIS

Strict liability in

South African criminal law*

C R M DLAMINI**

1. Introduction

The development of the idea that criminal sanctions are to be visited upon

any person only if that person commits the forbidden act with a guilty state of

mind is one of the indices used to evaluate a legal system. The requirement

of mens rea for the imposition of criminal sanctions is the distinguishing

characteristic of a civilised system of law.

1

Proof of the existence of a guilty state of mind at the time of the

commission of an act is, however, sometimes extremely difficult to prove.

That which is in the mind of the accused at the time he commits an act that

outwardly constitutes a criminal offence, is usually known only to him. Proof

of mens rea may only be inferred from the overt conduct of the accused and

inferences are drawn from such conduct using ordinary human experience as

a yardstick. Even then, in marginal cases, the decision is quite hard to make.

The legislature, by way of policy determination, will often come to the

help of the prosecution by defining the offence in such a way that mens rea is

excluded from the definition of the criminal act. Such definitional exclusion

may have the practical effect that mens rea is not a constituent element of

such a crime and need not be proved or even alleged in the indictment

where proof of the overt act alone leads unerringly to the imposition of

criminal sanctions.

The critical question is whether the exclusion of mens rea as a requirement

for an offence can be regarded as in conformity with the new constitutional

dispensation. In other words is strict liability permissible in terms of our

* This article is extracted from the author's unpublished LLD thesis

Proof Beyond a Reasonable

Doubt

(1999) submitted at the University of Zululand

** SC, BProc LLM LLD (UZ) LLD (UP) LLD (UWC) LLD (SA) LLD (UZ),

former Rector and Vice-

Chancellor, University of Zululand

1





C R Snyman

Criminal Law

3ed (1995) 132; J Burchell & J Milton

Princples of Criminal Law

(1991) 314.

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(2002) 15 SACJ 1

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

SACJ •

(2002) 15 •

SAS

Constitution? This question is based on the fact that our Constitution is the

supreme law of the land and any law that is in conflict with it is invalid. It is in

particular the Bill of Rights that is of paramount importance.

2

It is regarded as

the cornerstone of our democracy and enshrines the rights of the people. It

also affirms the democratic values of human dignity, equality and freedom.

3

The Constitution protects not only dignity,

4

but also rights to a fair trial.

5

These are somewhat interlinked in that they emphasise that people should

be treated fairly, as human beings, with dignity and self-worth.

6

Procedural

issues sometimes have a substantive significance.

The right to a fair trial includes the presumption of innocence and the right

to remain silent.

7

The state has the duty to prove the guilt of the accused

beyond a reasonable doubt and it must prove each and every element of the

offence committed.

8

These propositions have substantive implications that

are necessary to outline.

2. Substantive considerations

There is no doubt that the criminal law is a drastic and awe-inspiring aspect

of the law because it makes use of society's extreme sanction namely

punishment.

9

Punishment is drastic because it involves the violation of a

person's liberty or the deprivation of his or her property.

10

In order for

punishment to be fair, it must be deserved. Punishment is deserved if

somebody has committed an offence knowingly and with a guilty state of the

mind. That is why mens rea is an essential element of the offence. It is a

feature of a legal system that places emphasis on the worth of an individual.

11

As punishment is a violation of an individual's rights, if it is imposed it

needs justification. It will be justified on the ground that an individual has

deserved punishment which will be the case if a person has committed an

2

s2 of the Constitution of the Republic of South Africa Act 108 of 1996.

3

s7(1) of the Constitution.

4

s10 of the Constitution.

5

s35 (3) of the Constitution.

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

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Prinsloo v Van der Linde

1997 (3) SA 1012 (CC) 1997 (6) BCLR 259 (CC)

The President of the

Republic of South Africa v Hugo

1997 (4) SA 1 (CC) 1997 (6) BCLR 708 (CC);

Harksen v Lane

1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).

s35(3) of the Constitution.

8

C R M Dlamini The duty to prove each and every element of the offence' (2001) 14

SACJ 20ff;

Andrew Paizes 'A closer look at the presumption of innocence in our Constitution : what is an

accused presumed to be innocent of? (1998) 11

SACJ 409.

9

M A Rabie Decriminilization of the law — Idea and Reality' in AJGM Sanders (ed)

Southern

Africa in Need of Law Reform

(1981) 99.

10

H L Packer

The Limits of the Criminal Sanction

(1968) 21 et seq.

11

C R M Dlamini 'In defence of the defence of ignorance of law' (1989) 2

SACJ

14.

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