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25 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Defenitional elements |
The DE of a crime contains the model or formula that enables both the ordinary person and a court to know which particular requirement apply to a certian type of crime |
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Formally defined crimes |
The DE prescribe a certian type of conduct irrespective of what the result of the conduct Example, prejury and possession of drugs |
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Materially defined crimes |
The DE do not prescribe a specific conduct, but rather any conduct that causes a specific condition Examples, murder,arson |
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Causation in materially defined crimes |
The q arises whether there is a casual link (or nexus) between x's conduct and the prohibited result -y's death |
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The principle to be applied in determining causation |
Casual link equal, factual causation(condition sine qua non) plus legal causation ( policy considiration) |
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Factual causation-conditio sine qua non |
X's act is the factual cause of y's death if it is a conditio sine qua non for y's death |
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Conditio sine qua non test |
By asking what would have happened if x's act had not occured. If it is clear that in such a case the result would not have materialized then x's act is a factual cause of y's death |
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Theories of Legal causation |
1. Individualisation theories 2. Theory of adequate causation 3. Novus actus interveniens |
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Individualisation theory |
We must look among all the factors and conditions that qualifies as factual causes of the prohibited situation, for that one that is most operative and regard it as the lagal cause of the prohibited situation |
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Theory of adequate causation |
If according to human experience, in the normal cause of events the act has the tendency to bring about that kind of situation Case law- loubser case |
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Novus actus interveniens |
Another event breaks the chain of causation, has taken place, preventing us from regarding x's conduct as the cause of y's death. Case law- sv counter |
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Courts approach to legal causation |
Courts do not single out a specific theory of legal causation. Condition that is a factual cause should also be a legal cause of that situation Court must be guided by policy considiration |
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Policy considiration |
1.Individualisation such as "proximate cause" or "direct cause" 2. Theory of adequate causation 3. Absence of a novus actus interveniens |
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Grounds of justification |
Private defence Necessity Consent Official capacity Parents right chastisement |
Unlawfulness is excluded |
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Private defence (requirements of attack) |
The attack must be unlawful, Against the interest that ought to be protected, Threatening but not yet completed |
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Private defence ( requirements of defence) |
The defence action must be directed at the attacker, Stand in a reasonable relationship to the attack, Taken while the defender is aware that he is acting in private defence |
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Factors to decide if there is a reasonable balance between the attack and defence |
1. Relationship between parties 2. Gender 3. Location 4. Nature, severity of any injury 5. Nature of the means 6. Nature and extend |
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Difference between private defence and necessity |
Origin- PD stems from unlawfull attack. N stems from either unlawful attack or from chance circumstances Object- PD directed at the unlawful human attack. N either directed at interest of another innocent 3rd part or merely amounts to a violation of a legal provision |
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Requirements for plea of necessity |
Legal interest threatened Protection of another Emergency already began but not yet terminated Personally resonsible for emergency Not legally compeled to endure danger Only way to avert danger Concious of fact that emergence exists Not more harmed cause than necessary |
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Test to determine necessity |
The test is objective. |
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Different possible effects of consent |
1.Crime or act must be of such a nature that the law recognises consent to the commission of such act as ground of justification. 2. Crimes were consent can never be a defence-murder 3. Crimes were consent is a ground of justification-theft 4. Crimes were consent is sometimes a justification-assault |
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Requirements for a valid plea of consent |
The consent must be; 1. Given voluntarily 2. Given by a person with certian mental abilities 3. Based upon knowledge of the true and material facts 4. Given either expressly or tacitly 5. Given before the commission of the act 6. Given by the complainant herself |
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Requirements for defence of obedience to succeed |
1. Order must emanate from a person lawfully placed in authority over x 2. X must have been under a duty to obey the order 3. The order must not be manifested unlawfully 4. X must have done no more harm that is necessary to carry out the order |
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Official capacity |
X by virtue of her holding a public office, is authorised to perform the act, provided the act is performed in the course of the exercise of her duties |
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Triviality |
X commits an act which is unlawful, the degree in which she contravenes the law is minimal, that is, of a trifling nature, a court will not convict her of the crime in question
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