The duty to prove each and every element of the offence

JurisdictionSouth Africa
Citation(2001) 14 SACJ 20
AuthorCRM Dlamini
Published date24 May 2019
Date24 May 2019
The duty to prove each and every
element of the offence*
1. Introduction
It is well known that in criminal cases the state bears the onus to prove the
guilt of the accused beyond a reasonable doubt.
It is well enough to say that
the guilt of the accused must be proved beyond a reasonable doubt, but what
are those facts or incidents which, if proved, comprise the guilt of the
accused? Or is guilt a single incident or fact which, when proved, will
eventually lead to the sanction of the accused?
Criminal law solves the problem for procedural law by dividing every
crime into various elements. In South Africa, for example, the crime of theft is
not committed unless there is a
mens rea
permanent deprivation of a thing. Ordinarily to obtain a conviction, the state
would have to prove each of the aforegoing elements beyond a reasonable
doubt. No person may be convicted of an offence unless each element of
such offence is proved beyond a reasonable doubt.
Though the mandate looks easy on paper that the state must prove every
element of the crime beyond a reasonable doubt, in practice it is often
difficult so to prove. An element of an offence is often not just a singular,
isolated event. Very often the element consists of a number of related
incidents or facts and is often an aggregate of such facts or incidents. Under
the definitional clause in the Abuse of Dependence-Producing Drugs and
Rehabilitation Centres Act, for example, it was a very serious offence to deal
in drugs. 'Deal in' has an extended meaning and the acts therein defined,
singly or in aggregate constitute the elements of the crime. Obviously,
therefore, in seeking to prove an element of a crime the state will have to
establish a series of facts, some seemingly important and others trivial but
which, when
held together
by the cohesiveness of logic, will constitute a
rational persuasive logical entity. A question which arises is: What persuasive
This article is extracted from the authors unpublished LLD thesis
Proof Beyond a Reasonable
(1999) submitted at the University of Zululand.
LLD(SA) LLD (UZ)Rector and Vice-Chancellor,
University of Zululand, Professor of Law, Advocate of the High Court of SA
Part-time member of the Human Rights Commission
L H Hoffmann & D T Zeffertt
The South African Law of Evidence
4ed (1988) 525.
C Klotter & C C Meier
Criminal Evidence for Police
(1971) 57.
(2001) 14 SACJ 20
© Juta and Company (Pty) Ltd
The duty to prove each and every element of the offence
value is to be ascribed respectively to the important facts and to the trivial
facts? Within the context of the process of persuasion, must both the
important and the trivial facts be established beyond a reasonable doubt or is
that test required only of the important facts? Answers to the aforegoing
questions affect the quantum of proof and therefore any decision in any
criminal case as to whether the requisite standard of persuasion has been
attained. Before we analyse the situation in South Africa in some depth, it is
instructive to refer to the position in the United States of America and Britain.
2. The law of the United States
In the United States of America case of
Davies v United States
the court held
that not only is the prosecution required to prove every element necessary to
constitute the crime
but to show 'beyond a reasonable doubt the existence
of every fact necessary to constitute the crime charged'.
In drawing the
distinction between an element of a crime and a fact necessary to constitute a
crime, the court, it is submitted, indicates clearly that all facts no matter how
trivial require to be proved beyond a reasonable doubt if they are necessary
to constitute a crime.
In re Winship,
the Supreme Court held that the
requirement that the prosecution prove each and every element of a crime
was mandated by the due process clause of the constitution.
avers that the prosecution is required to prove every material
element of a criminal offence beyond a reasonable doubt because the due
process clause of the Constitution requires that material elements of crimes
be so proved. Nesson cites
Mullaney v Wilbur
In re Winship
support of his stand. Nesson creates the impression that facts other than
material elements can be proved by reference to some other standard of
proof other than proof beyond a reasonable doubt. On a careful reading of
the cases cited, however, one could find no evidence of the restriction
imposed by Nesson, that is, that the prosecution need apparently prove only
the material elements of the crime beyond a reasonable doubt. In fact, the
court, in
In re Winship,
specifically held:
Davies v United States
160 US 469 (1895).
Supra 487.
Supra 493.
However Robert Mosher disputes that the requirement is constitutionally based; see the
comment in "Statutory Criminal Presumptions: Reconciling the Practical with the Sacrosanct"
71 UCLA Law Review
C Nesson 'Reasonable Doubt and Permissive Inferences : The Value of Complexity' (1979) 92
Harvard LR
421 US 684 (1975).
397 US 358 (1965).
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