Criminal Law
Criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al., a crime is “conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted.” The crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
In South Africa, as in most adversarial legal systems, the standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt. The sources of South African criminal law are to be found in the common law, in case law and in legislation.
Criminal law (which is to be distinguished from its civil counterpart) forms part of the public law of South Africa, as well as of the substantive law (as opposed to the procedural). The study of “criminal law” generally focuses on the substantive law: namely, the principles of law according to which criminal liability (guilt or innocence) is determined, whereas the law of criminal procedure, together with the law of evidence, generally focuses on the procedures used to decide criminal liability and theories of punishment. A study of the substantive criminal law may be divided into two broad sections:
- an examination of the general principles of liability (applicable to crimes generally); and
- an examination of the definitions and particular requirements of the various individual crimes or “specific offences.”
A distinction must be drawn also between national and international criminal law. The term “criminal law” usually refers to internal or domestic or national criminal law, which is governed by the legal system of the country concerned. The term “international criminal law,” denoting a more recent branch of the law, is viewed by some as a branch of public international law, while others contend that it is, “at least in the material sense (and to a growing extent also in the institutional and procedural sense), a discipline in its own right