The duty to prove each and every element of the offence

• Jurisdiction: South Africa
• Citation: (2001) 14 SACJ 20
• Author: CRM Dlamini
• Published date: 24 May 2019
• Date: 24 May 2019
• Pages: 20-37

The duty to prove each and every

element of the offence*

C R M DLAMINI**

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.

1

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

contrectatio,

unlawfulness,

mens rea

and

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.

2

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This article is extracted from the authors unpublished LLD thesis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

Doubt

(1999) submitted at the University of Zululand.

** SC, B.Proc LLM LLD(UZ) LLD (UP) LLD(UWC)

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

1



L H Hoffmann & D T Zeffertt

The South African Law of Evidence

4ed (1988) 525.

2

j

C Klotter & C C Meier

Criminal Evidence for Police

(1971) 57.

20

(2001) 14 SACJ 20

© Juta and Company (Pty) Ltd

The duty to prove each and every element of the offence



21

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

3

the court held

that not only is the prosecution required to prove every element necessary to

constitute the crime

4

but to show 'beyond a reasonable doubt the existence

of every fact necessary to constitute the crime charged'.

5

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.

6

However,

Nesson

7

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

8

and

In re Winship

9

in

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:

3

Davies v United States

160 US 469 (1895).

4

Supra 487.

5

Supra 493.

6

However Robert Mosher disputes that the requirement is constitutionally based; see the

comment in "Statutory Criminal Presumptions: Reconciling the Practical with the Sacrosanct"

(1970)

71 UCLA Law Review

158-9.

C Nesson 'Reasonable Doubt and Permissive Inferences : The Value of Complexity' (1979) 92

Harvard LR

1188.

8

421 US 684 (1975).

9

397 US 358 (1965).

© Juta and Company (Pty) Ltd