S v Francis

Last updated

S v Francis is an important case in South African criminal law. It deals with that subdivision of the principle of legality known as the ius acceptum rule in statutory crimes: the rule stipulating that a court may convict an accused of a crime only if the type of act which he committed is recognised by the law—in this instance the statutory law as a crime. [1]

Contents

Facts

The accused, who had been an inmate of a rehabilitation centre, was charged with having absconded from the centre: that is, of having run away from the centre without the permission of the superintendent of the centre. The State charged the accused with contravening a certain regulation, [2] promulgated in terms of an Act of 1971 which dealt with rehabilitation centres. This regulation made it clear that the act which the accused had allegedly committed constituted a crime. In 1992, however, the 1971 Act, as well as the regulations promulgated in terms of it, was repealed and replaced by a new Act, which dealt with the same topic. The 1992 Act contained no provisions creating crimes: that is, no provision stating clearly that a certain act or failure to comply with a certain provision in the Act or any regulation constituted a crime.

The accused's alleged absconding from the rehabilitation centre took place in 1993. At that time the 1971 Act was no longer in force; it had been replaced by the 1992 Act. The question the court had to decide was whether there existed any crime under which the accused could be charged.

Judgment

Ackermann J found it to be very significant that, considering the provisions of the earlier 1971 Act in this regard, the 1992 Act made no mention of any criminal jurisdiction of the magistrate's court. At first glance this was a strong indication that the legislature wished to remove from the criminal sphere the maintenance of discipline in the treatment centres and registered treatment centres, and to leave these matters exclusively in the hands of the superintendent of these centres (or another person who had been appointed for this purpose by the management of the centre).

The principle of legality was also of importance here. Ackermann J agreed with Snyman: [3] In criminal law this principle "fulfils," as Snyman put it, "the important task of preventing the arbitrary punishment of people by state officials, and of ensuring that the determination of criminal liability and the passing of sentence correspond with clear and existing rules of law." [4] In this respect Snyman distinguished between a legal norm, a criminal norm and a criminal sanction, and illustrated the differences as follows:

A statutory prohibition may be stated in one of the following three ways:

(a) you may not travel on a train without a ticket;

(b) you may not travel on a train without a ticket and anybody contravening this provision shall be guilty of a criminal offence;

(c) you may not travel on a train without a ticket and anybody contravening this provision shall be guilty of an offence and punishable with imprisonment for a maximum period of three months or a maximum fine of R600, or both such imprisonment and fine.

Provision (a) contains a simple prohibition that constitutes a legal norm, but not a norm in which a crime is created. Although non-fulfilment of the regulation may well lead to administrative action (such as putting the passenger off at the next stop) it does not contain a criminal norm. A court will not, without strong and convincing indications to the contrary, hold that such a regulation has created a crime. Provision (b) does contain a criminal norm, because of the words "shall be guilty of an offence". However, it does not contain a criminal sanction because there is no mention of the punishment that should be imposed. Provision (c) contains both a criminal norm and criminal sanction. The criminal sanction is contained in the words "and be punishable with imprisonment for a maximum period of three months or a maximum fine of R600, or both such imprisonment and fine". If a statutory provision creates a criminal norm only, but remains silent on the criminal sanction, as in provision (b) above, the punishment is simply at the court's discretion, that is, the court itself can decide what punishment to impose. In the unlikely event of a statutory provision containing a criminal sanction, but not a criminal norm, in all probability the court will decide that the legislature undoubtedly intended to create a crime, and will assume that a crime was indeed created." [5] [6]

As Snyman then pointed out, however, South African courts had not always strictly observed these principles. In R v Forlee , [7] the accused was charged with contravening a statutory provision which forbade the purchase of opium. The prohibition was taken over from an earlier Act in which the purchase of opium was expressly declared a crime. In the new Act, which replaced the previous one, the criminal sanction (the provisions declaring the purchase to be a crime) was omitted. the Court remarked as follows:

If this omission were intentional, then the Legislature considered either that the common law provided a penalty or that no penalty should be imposed at all. The latter conclusion is negatived by the whole tenor of those statutes [... T]he reasonable assumption is that the Legislature, whilst intending the prohibition to be absolute and effective, overlooked the absence of any expressed penalty [...]. It is clear that no law of this kind can be effective without a penalty; and the argument that the Courts must therefore be held to have the power to inflict a penalty, wherever the Legislature has intended to create an offence, is of considerable weight. [8]

The court concluded: "We have come to the conclusion that the same principle applies in Roman-Dutch law, and that as the act in question was expressly an offence, it is punishable under our law." [9] The court relied among other things on a rule which it formulated as follows: "The doing of an act which is expressly forbidden by the Legislature upon grounds of public policy constitutes an indictable offence, even though no penalty be attached." [10]

The principle laid down in Forlee had been followed in the Appellate Division in R v Langley [11] and R v Baraitser , [12] but had been strongly criticised by De Wet and Swanepoel, [13] and by Rabie and Strauss. [14] Ackermann J quoted Snyman to the following effect:

If the Legislature inadvertently omits the criminal norm, then the Legislature itself should correct the error. It should not be left to the court to speculate on what the Legislature wished to do and then be left to the court itself to create a criminal norm. In any event the principle quoted is formulated too broadly: ordinary legal norms can also be created by means of express prohibitions, and can be based "upon grounds of public policy", but this still does not transform such legal norms into criminal norms. [15] [16]

In Ackermann J's opinion, "there is merit in this criticism." For the purposes of this judgment, however, "I find it unnecessary to take this matter further for the following reason: even if one assumes that the principles laid down in Forlee are applicable in this Division, they are not applicable to the facts in the present case."

From the passage in Forlee quoted above, it appeared to Ackermann J that the consideration "that no law of this kind can be effective without a penalty" weighed heavily with the court. The position in the present case was completely different. The purpose of the regulation with which the court was here dealing was to maintain good order and discipline in the treatment centres concerned. There was no indication that this purpose could not be achieved in full by making use of the procedure set out in section 43(1) of the 1992 Act: that is, by the applicable centre's taking the necessary steps against the patient through an internal investigation, and imposing the punishment prescribed by regulation.

Accordingly, Ackermann J could not see that the public interest required the transgression to be treated as an offence which could be tried and punished in the ordinary courts of the country. Apart from this, the legislature had expressly omitted from the 1992 Act those provisions of the 1971 Act which dealt with the prosecution and punishment in a magistrate's court of an inmate of a rehabilitation centre who transgresses.

These considerations, taken cumulatively, led to the conclusion that the 1992 Act excluded the possibility of an inmate of a rehabilitation centre being criminally prosecuted in the ordinary courts of the country. [17] The relevant section in the 1992 Act contained only a legal norm, not a criminal one. As Snyman wrote subsequently, "In enacting the 1992 Act, the Legislature in all probability intended non-compliance with the legal norm to lead only to certain administrative measures being taken by the superintendent of the institute, and not to a criminal charge against and a conviction of the transgressor of the norm." [18]

The result of all this was that the accused Joseph Francis and Wally Singh should not have been charged or convicted in any magistrate's court of contravening Regulation 84(j). Accordingly, their convictions were set aside.

Farlam J concurred in the judgment of Ackermann J.

Principle of legality

Snyman, much cited in Ackermann J's decision, subsequently noted of this decision that the court had "clearly recognised the importance of the principle of legality in criminal law." Although the court did not expressly refuse to follow the principle enunciated in Forlee's case, it was "nevertheless significant," thought Snyman, that the court was "quite sympathetic toward the criticism levelled at that case," [19] including Snyman's own criticism.

See also

Related Research Articles

Assault Physical or verbal attack of another person

An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Generally, the common law definition is the same in criminal and tort law.

Crime Illegal behavior defined by existing criminal law

In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term crime does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence is an act harmful not only to some individual but also to a community, society, or the state. Such acts are forbidden and punishable by law.

A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added; other crimes were called misdemeanors. Following conviction of a felony in a court of law, a person may be described as a felon or a convicted felon.

Mens rea is the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed. It is a necessary element of many crimes.

Nulla poena sine lege is a legal principle which states that one cannot be punished for doing something that is not prohibited by law. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law. It has been described as "one of the most 'widely held value-judgement[s] in the entire history of human thought'".

An ex post facto law is a law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when an offender kills in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.

Legality, in respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given jurisdiction, and the construct of power.

Capital punishment in India Death penalty in India, its states and union territories

Capital punishment in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants could be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

Section 91(27) of the Constitution Act, 1867, also known as the criminal law power, grants the Parliament of Canada the authority to legislate on:

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

Criminal law of Singapore Laws of Singapore

Although the legal system of Singapore is a common law system, the criminal law of Singapore is largely statutory in nature. The general principles of criminal law, as well as the elements and penalties of general criminal offences such as assault, criminal intimidation, mischief, grievous hurt, theft, extortion, sex crimes and cheating, are set out in the Penal Code. Other serious offences are created by statutes such as the Arms Offences Act, Kidnapping Act, Misuse of Drugs Act and Vandalism Act.

Serious Crime Act 2007 United Kingdom legislation

The Serious Crime Act 2007 is an Act of the Parliament of the United Kingdom that makes several radical changes to English criminal law. In particular, it creates a new scheme of serious crime prevention orders to frustrate crime in England and Wales and in Northern Ireland, replaces the common law crime of incitement with a statutory offence of encouraging or assisting crime, makes provision as to disclosure and information sharing in order to prevent fraud, and abolishes the Assets Recovery Agency creating a new regime for the recovery of the proceeds of crime.

In the United Kingdom there are several crimes that arise from failure to take care of health, safety and welfare at work.

South African 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." 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.

Crimes Act of 1790 US bill

The Crimes Act of 1790, formally titled An Act for the Punishment of Certain Crimes Against the United States, defined some of the first federal crimes in the United States and expanded on the criminal procedure provisions of the Judiciary Act of 1789. The Crimes Act was a "comprehensive statute defining an impressive variety of federal crimes".

In R v Forlee, the accused was charged with contravening a statutory provision which forbade the purchase of opium. The prohibition was taken over from an earlier Act, in which the purchase of opium was expressly declared a crime. In the new Act, which replaced the previous one, the criminal sanction was omitted. The court remarked as follows:

If this omission were intentional, then the Legislature considered either that the common law provided a penalty or that no penalty should be imposed at all. The latter conclusion is negatived by the whole tenor of those statutes [... T]he reasonable assumption is that the Legislature, whilst intending the prohibition to be absolute and effective, overlooked the absence of any expressed penalty [...]. It is clear that no law of this kind can be effective without a penalty; and the argument that the Courts must therefore be held to have the power to inflict a penalty, wherever the Legislature has intended to create an offence, is of considerable weight.

S v Masiya is an important case in South African criminal law, decided by the Constitutional Court.

Capital punishment in Bangladesh is a legal form of punishment for anyone who is over 16, however in practice will not apply to people under 18. Crimes that are currently punishable by death in Bangladesh are set out in the Penal Code 1860. These include waging war against Bangladesh, abetting mutiny, giving false evidence upon which an innocent person suffers death, murder, assisted suicide of a child, attempted murder of a child, and kidnapping. The Code of Criminal Procedure 1898 provides that "he be hanged by the neck until he is dead." For murder cases, the Appellate Division requires trial courts to weigh aggravating and mitigating factors to determine whether the death penalty is warranted.

References

Books

Cases

Notes

  1. ↑ Snyman Casebook 25.
  2. ↑ Regulation 84(j).
  3. ↑ Strafreg 3rd ed at 33.
  4. ↑ Translated by Snyman Casebook 23.
  5. ↑ 41-42.
  6. ↑ Translated by Snyman Casebook 23.
  7. ↑ 1917 TPD 52.
  8. ↑ 53-54.
  9. ↑ 56.
  10. ↑ 55.
  11. ↑ 1931 CPD 31.
  12. ↑ 1931 CPD 418.
  13. ↑ Strafreg 4th ed at 46-47.
  14. ↑ Punishment: An Introduction to Principles 4th ed at 79-80.
  15. ↑ 43.
  16. ↑ Translated by Snyman Casebook 24.
  17. ↑ See also, in general, S v La Grange 1991 (1) SACR 276 (C) at 278C-279.
  18. ↑ Casebook 25.
  19. ↑ Casebook 25.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.