MAJOR CHANGES IN CRIMINAL LAW CODE

Share

The Code has created a number of new crimes and has modified many of the existing crimes. It has also made some changes to the defences to criminal liability.

This summary draws attention only to the important changes brought about by the Code. It does not attempt to deal with every single change or modification. The reasons for these changes are dealt with later in the Commentary when these matters are commented upon in detail.

 

Crimes

 

Murder [s 47]

 

Section 48 of the Constitution protects the right to life but states that “a law may permit the death penalty to be imposed.'” The Constitution itself does not impose the death penalty; it only allows a law to do so, and if a law does provide for the death penalty the law must make its imposition subject to cer1ain restrictions:

  • the penalty can be imposed only for murder committed in aggravating circumstances.
  • it cannot be made a mandatory penalty but must allow a court a discretion to impose it.
  • it cannot be imposed on women;

 

Accordingly, the section in the Criminal Law Code providing for the crime of murder was amended by a General Law Amendment Act 2016 to provide that the death penalty for murder is competent only were the crime is committed in certain aggravation circumstances, and even then a court has a discretion to impose a sentence of imprisonment for life or a prison sentence of at least 20 years.  The factors that may constitute aggravating circumstances are also set out.

 

Culpable homicide [s 49]

This crime has been extended to cover situations where there was “conscious negligence”. A person is guilty of this crime not only where he or she fails to realise that death will result from his or her conduct but also where he or she realises that death may result from his or her own conduct and negligently fails to guard against this possibility.

Inciting or assisting suicide [s 50]

A new crime has been created which consists of inciting another to commit suicide or assisting a person to commit suicide.

Taking person off life support system [s 54(2)]

There are new provisions allowing the High Court, on application from a person such as a spouse or close relative, to order the removal of a person from a heart-lung or ventilator machine or other life support system in certain circumstances. The High Court can so order on the basis of evidence by a medical practitioner other than the patient’s doctor that–

  • the patient is unconscious and there is no reasonable prospect of that person regaining consciousness; and
  • although the patient’s brain functions may not have entirely ceased, that person’s life is being artificially sustained by the life support system and there is no reasonable prospect that the patient will ever be able to survive without being on the life support system.

Rape [s 65]

This crime continues to be a crime that is committed by a male who has non-consensual sexual intercourse with a female. However, the crime has been extended to cover a situation where a male has non-consensual anal intercourse with the female.

Previously a boy under 14 could not commit rape. Now a boy over 12 but under 14 is rebuttably presumed to be incapable of committing rape – he can be convicted of rape if the presumption of incapacity is rebutted.

Previously a girl of or below the age of 12 is irrebuttably presumed to be incapable of consenting to sexual intercourse and thus sexual intercourse with such a girl will constitute rape.

The Code has a new provision relating to girls above the age of 12 but of or below the age of 14. The presumption as to capacity to consent to sexual intercourse by girls in this age category is rebuttable: a male will be guilty of rape if he has sexual intercourse with a girl above the age of 12 but of or below the age of 14 unless he establishes on a balance of probabilities that the girl was capable of giving consent to sexual intercourse and did give her consent. [s 64(2)]

Aggravated indecent assault [s 66]

This new sexual crime covers cases where a male or female commits an indecent assault involving non-consensual penetration with indecent intent of any part of the body of the victim or perpetrator. It is more serious than the crime of indecent assault, which does not involve any such penetration. A person found guilty of aggravated indecent assault is liable to the same punishment as for rape (imprisonment for life or any definite period of imprisonment).

A girl or boy below 12 can’t commit aggravated indecent assault but a girl or boy between 12 and 14 can be convicted of aggravated indecent assault if the State can rebut the presumption that he or she was incapable of committing this crime.

A girl under 12 is irrebuttably presumed to be incapable of consenting to sexual intercourse but a girl above the age of 12 but of or below the age of 14 is rebuttably presumed to be incapable of consenting to sexual conduct that would constitute aggravated assault and X will be guilty of aggravated assault upon a girl between these ages unless he establishes on a balance of probabilities that the girl was capable of giving consent to the sexual activity in question and did give her consent to it. [s 64(2)]

Sodomy [s 73]

This crime used to cover only anal sexual intercourse between males. The Code has expanded the scope of this crime. It now includes not only acts of anal sexual intercourse, but also any act involving physical contact between males that would be regarded by a reasonable person as an indecent act e.g. masturbation of a male by another male.

Sexual intercourse within a prohibited degree of relationship (Incest) [s 75]

This crime codifies the common law of incest (with modifications) but also now accommodates customary law notions of incest. For example, under customary law sexual relations between cousins is normally prohibited and the persons involved now commit this crime if they are living in accordance with customary law and the customary law of their community prohibits sexual intercourse between such persons.

Assault [s 89]

The distinction between “common assault” and “assault with intent to inflict grievous bodily harm” has been abolished. All assaults, except aggravated indecent assault and indecent assault, now fall under the single crime of assault. The seriousness of the assault will now be a matter for sentence.

Administration of a noxious substance is now no longer be a separate offence but will simply be treated as a species of assault.

Negligent assault [s 90]

The new crime of “negligently causing serious bodily harm” has been created to cover situations where the accused did not intend to inflict serious bodily harm, but was negligent in causing such harm. The crime is only committed if the bodily harm that is caused is serious.

Pledging a female person [s 94]

This crime now also prohibits the customary (or allegedly customary) practice of handing over of a female person to settle a debt or delict.

Witchcraft and witch-finding [ss 97-102]

Significant changes have been made to the law relating to law on witchcraft that has been incorporated into the Code. The Code provisions make a distinction between the practices of “witchcraft” and “witch-finding”.

It is no longer an offence to accuse a person of engaging in witchcraft if the accusation is based on good grounds and provided that non-natural means are used to find a witch.

The distinction recognises that witch-finding is not be stigmatised as “witchcraft”, while acknowledging that the practice of witch-finding may in some cases be socially disruptive or cause injustice to the person accused of witchcraft.

Theft by false pretences

This separate crime has been abolished and in future cases of what used to be theft by false pretences will be treated as cases of fraud.

Unauthorised borrowing [s 116]

This new crime of “unauthorised borrowing or use of property” makes it a crime to borrow or use without authorisation any property belonging to another. Previously it was only a crime to borrow a car or a boat.

Continuing nature of theft and stock theft [s 121]

Previously the law on theft provided that a person continued to commit the crime of theft for as long as the stolen property remains in the possession of the thief. The Code drastically changes this rule to provide that theft or stock theft continues to be committed regardless of whether he or she has lost possession of the stolen property. A thief may be tried in which ever magisterial district he or she last possessed the property.

Making off without payment [s 117]

This creates the new crime of “making off without payment. This crime will cover situations where “services” rather than “goods” are “stolen”. Also within the scope of this crime is the consumption of goods for which payment after consumption is required but has not been made: in these circumstances the intention to “deprive another person permanently” of ownership, possession or control is incapable of proof, because it may only have been formed after the goods were consumed and therefore no longer capable of being owned, possessed or controlled by anybody.

Uttering [s 137(2)]

Although the common law crime of forgery is retained, the Code abolishes the existing crime of “uttering” (that is, passing off as genuine) a forged document and provides that in the future uttering will be treated as fraud.

If the person who passes off the forged document also forged it, he or she will be liable for both forgery and fraud.

Computer-related crimes [s 162-168]

These sections create a series of new crimes to deal with the deliberate misuse of computers, such as deliberate introduction of a virus into a computer. Other crimes in this category include misuse of credit and debit cards, passwords and pin-numbers. Such misuse creates the potential for fraud, sabotage and other harm to the public interest. Such crimes are often collectively described as “cyber-crime”.

Bribery [s 170]

Bribery used to be confined to situations where a state official was involved. The Code provisions extend bribery to cover giving and taking of bribes both in the public sector and in the private business sector.

Corruptly concealing from principal a personal interest in transaction [s 173]

This creates the new crime of corruptly concealing from a principal a personal interest in a transaction.

Obstructing a public official [s 178]

This is new crime.

Impersonating a police officer, peace officer or public official [s 179]

This is a new crime.

Deliberately supplying false information to a public authority [s 180]

This is a new crime.

Threatening to commit specified crimes [s 184]

This creates the new crime of making a threat to commit a serious crime (such as murder, rape, kidnapping or other crime specified in the section). A person commits this crime where he or she threatens to commit the crime intending to commit that crime, or intending to inspire or realising that there was a real risk of inspiring in the person threatened a reasonable fear or belief that the accused would commit the crime concerned.

Malicious damage to property [s 140]

This merges together the common law crimes of arson and malicious injury to property.

This crime is aggravated if the damage was caused by the use of fire or explosives, or involved injury or the risk of injury to persons. [s 143].

Claim of right defence to malicious damage to property [s 144]

For the defence of claim of right to succeed, the mistaken belief has to be a reasonable belief.

Negligently causing serious damage to property [s 141]

This creates the new crime of destroying or seriously damaging another’s property through gross negligence.

Subornation of perjury no longer chargeable

Under the common law there was a separate offence known as subornation of perjury. This common law crime of subornation of perjury has been abolished. Instead, if X incites Y to commit perjury, X will be charged with incitement to perjury or, if the incitement succeeds, and Y gives actually false testimony, X will be charged as an accomplice to the perjury committed by X.

Unlawful entry into premises [s 131]

This crime of what was formerly known as housebreaking has been completely reformulated to eliminate the unnecessarily technical requirements of housebreaking. The reformulated crime will simply treat as aggravating factors for sentence such factors as the purpose in entering; the fact that there was forcible entry and the fact that the property entered was a dwelling house.

Commenting upon pending case now defeating or obstructing the course of justice and not contempt [s 184(1)]

Previously X would have been guilty of contempt of court where he or she commented upon a case which is pending before a court intending the statement to prejudice the trial of the case.

This will now be treated as a sub-species of the crime of defeating or obstructing the course of justice.

Attempt to commit a crime [s 189]

The accused is guilty of an attempt to commit a crime if he or she does or omits to do anything intending to commit the crime (or realising that there is a real risk that the crime may be committed), provided that what the accused has done or omitted to do constitutes a substantial step towards the completion of the crime.

Participation or assistance in the commission of crimes [ss 195-204]

The Code recognises various forms of participation or assistance in the commission of crimes. 

Persons who authorise crimes are called principals

Persons who participate in crimes are co-perpetrators.

Persons who render assistance to the commission of crimes are accomplices.

Persons who render assistance after crimes have been committed are accessories.

 

Defences

 

Voluntary intoxication

Previously voluntary intoxication could at most be a partial defence. If, because of voluntary intoxication, the accused did not form the intention to commit serious crime he or she would be found guilty of a lesser crime. This “partial defence” had the effect of reducing murder to culpable homicide, assault with intent to commit grievous bodily harm to common assault, rape, to indecent assault (where because of intoxication, the accused mistakenly believed that the woman had consented to sexual intercourse, the accused would be found guilty of indecent assault.)

Now, however, if a person accused of any crime requiring proof of intention, knowledge or realisation of a real risk or possibility (“the crime originally charged”) can show that he or she was intoxicated to such an extent that he or she never formed the requisite state of mind, the court may convict the accused of the new strict-liability crime of “voluntary intoxication leading to unlawful conduct” instead of the crime originally charged, and sentence the accused to the same punishment to which the accused would have been liable if he or she had been found guilty of the crime originally charged and intoxication had been assessed as a mitigatory circumstance in his or her case [s 222].

 

The following table gives guidance on the correct charge to be brought under the Code–

 

Situation

 

Charge prior to Code

Charge under Code

Sets fire to building

Arson

Malicious damage to property

A man has anal sexual intercourse with a woman without her consent

Indecent assault

 

Rape

Passing off a forged document

Uttering

Fraud

Intentionally inflicting serious bodily injury

Assault with intent to do grievous bodily harm

Assault

Uses misrepresentation to induce person to hand over property capable of being stolen

Theft by false pretences

Fraud

Comments upon pending court proceedings intending to prejudice those proceedings

Contempt of court

Defeating or obstructing the course of justice

X incites Y to commit perjury X

 

Subornation of perjury

Incitement to perjury or, if the incitement succeeds, and Y gives actually false testimony, X will be charged as an accomplice to the perjury committed by Y.