STUDY UNIT 3: MURDER

Murder is the unlawful and intentional causing of death of another human

being.

ELEMENTS:
a) Causing the death (the act/conduct of the crime)
o the act consists of a voluntary act or omission which causes the death of
another human being.
o RULES: X must either commit a voluntary positive act(commissio), or there
must be a voluntary omission on his part-relevant in situations where
there is a legal duty on him to act actively.
o VOLUNTARY CONDUCT: The act is voluntary if X is capable of subjecting
his bodily movements to his will or intellect.
o CAUSATION: The act or omission qualifies as the cause of Y’s death if it is
both the factual and legal cause of the death.

It is the factual cause of Y’s death if it is a conditio sine qua non which means that
X’s conduct cannot be thought away without Y’s death disappearing at the same
time.
It is the legal cause of Y’s death if the court is of the view that there are policy
considerations for regarding it as the cause of Y’s death- in this case one or more
of several theories of legal causation is used, such as the individualisation theory
(proximate clause), the theory of adequate causation or the novus actus
interveniens theory.
b) Of another person:
o Neither suicide or attempted suicide is a crime, but this does not men that
to instigate, assist or put another person in a position to commit suicide
can never be a crime- in certain circumstances such conduct can amount
to murder or culpable homicide since the instigator’s conduct may be
causally related to the death or it may amount to attempted murder.
 o The human being killed must have been a live human being – to kill an
unborn foetus and separate it from the mother’s body is treated as
abortion in our law, not murder.
o Various tests may be used to ascertain whether a child was born alive.
Whether the child has breathed
Whether it had an independent blood circulation
Whether it had been completely removed from the mother’s
body.
o Section 239(1) of the CPA lays down that a child is deemed to have been born
alive and there exists a presumption of live birth if it is proved that the child
breathed, there is no need to prove an independent blood circulation and that at
the time of the child’s death, was separated from the mother’s body= it is
submitted that this presumption is rebuttable and this section of the CPA is only
relevant merely for procedural purposes and does not lay down substantive law.
o This section does not state when a child is born alive, but merely how it may be
proved that it was born alive= FUNTION OF SECTION 239.
o HOW THE COURT PROVES THAT THE CHILD BREATHED: the lungs are placed in
water to determine whether they float= HYDROSTATIC TEST
o It therefore remains possible for X to prove that even if the child breathed the
child was in fact dead before they were completely removed from the mother’s
body.
c) Unlawfully:
o The killing must be unlawful- certain grounds of justification such as
private defence, necessity, official capacity, or obedience to orders may
justify an otherwise unlawful killing.
o NB consent to the killing by the deceased does not exclude the
unlawfulness of the killing.
d) Intentionally:
o The form of culpability required is intention- if committed negligently
then it becomes culpable homicide.
o The intention requirement is satisfied not only if X has direct intention to
kill Y, but also if he merely foresees the possibility of Y being killed and
reconciles himself to this possibility-dolus eventualis
 o Remember that the test for intention is subjective – the court puts
themselves in the shoes of the accused and look at the psychological and
other factors that could have driven them to kill this person.
o Awareness of unlawfulness is an integral part of intention- A mistake
concerning a material element( such as that it is a human being killed)
excludes intention.

GENERAL
 X is liable to be convicted of murder in the following cases:
 Where X kills cold-bloodedly with premeditation and out of hatred.
 Where X gives Y, who suffers from cancer and endures excruciating
pain, a lethal injection to release him from his suffering.
 Where X at the request of Y, assist Y to commit suicide.
 While this crime clearly infringes the right to life which is contained in section 11
of the Constitution, the application of the right to dignity(section10), freedom
and security of the person(section14) have arisen in cases of physician-assisted
suicide (euthanasia).

Punishment:
the death penalty used to be a competent sentence for murder, but in 1995 in the
S v Makwanyane the CC held that this form of punishment is unconstitutional,
because it amounts to an unjustifiable violation of the right to life, the right to
dignity and the right not to be subjected to cruel, inhumane, or degrading
punishment.
 In responds to the high level of crime, including the increase in murder- section
51 of the Criminal Law Amendment Act 105 of 1997 was enacted.
 FUNCTION: makes provisions for minimum sentences- subsection 6 states that
these minimum sentences are not applicable to a child who was under the age of
18 years at the time they committed the crime.
 Imprisonment for life must sometimes be imposed- section 51(1) of this Act
provides that a regional court or High court must sentence a person convicted of
murder to imprisonment for life in the following circumstances:
if the murder was planned or premeditated
if Y was a law enforcement officer (such as a member of the police)
murdered while performing such functions as a law enforcement
officer, irrespective of whether Y was on duty or not.
if Y was somebody who has given or was likely to give material
evidence at a criminal proceeding in any court with reference to
any crime referred to in Schedule 1 of the CPA= this schedule
contains a list of crimes which may be described as serious)
if Y’s death was caused by X in committing or attempting to commit
rape or compelled rape.
If Y’s death was caused by X in committing or attempting to commit
robbery with aggravating circumstances
If the murder was committed by a person, group of persons or
syndicate acting in the execution or furtherance of a common
purpose or conspiracy.
If Y was killed to unlawfully remove any part of his body or because
of the removal of such body part.
Y’s death resulted from certain crimes mentioned in the Witchcraft
Suppression Act 3 of 1957
a) Other minimum periods of imprisonment must sometimes be imposed:
if one of the circumstances above are not present, then X does not
qualify for the mandatory imprisonment for life. However, section
51(2) provides that in such a situation a regional or High court is
nevertheless obliged to impose the following periods of imprisonment:
o 15 years- first offenders
o 20 years- second offenders
o 25 years- third or subsequent offenders
b) Avoidance of minimum sentences:
There are certain instances where the court is of the opinion that the
imposition of one of the minimum periods of imprisonment would be
 very harsh and unjust- subsection (3)(a) the legislature has created a
mechanism whereby a court may be freed from the obligation of
imposing one of the minimum sentences.
A court is not bound to impose imprisonment for life or for one of the
minimum periods of imprisonment= if there are substantial and
compelling circumstances which justify the imposition of a lesser
sentence then the court may impose a period of imprisonment which is
less than the one prescribed.

STUDY UNIT 3.2: CULPABLE HOMICIDE

Culpable homicide is the unlawful, negligent causing of the death of another human being.

ELEMENTS OF THE CRIME:

Elements are like that of murder,
a) Causing the death
except for intention is replaced with
b) Of another person negligence.
c) Unlawfully
o Where it has been proven that X, charged with murder, killed the deceased
unlawfully, but because of factors such as intoxication or provocation,
lacks the intention- the crime is not automatically reduced to culpable
homicide.
o The court must be satisfied that X was negligent in causing the death of Y.
d) Negligently
Culpability= the type of culpability required for this crime is negligence
 The test for negligence is objective which means that the court must ask itself:
o Whether the reasonable person in the same circumstance would have
foreseen the possibility that Y’s death may result from X’s conduct
o Whether the reasonable person would have taken steps to guard against
such possibility.
o Whether X’s conduct deviates from what the reasonable person would
have done in those circumstances
 There are certain cases in which the court convict X of culpable homicide even
though X, at first glance, would seem to have had the intention to kill Y.
  There are cases where X, in killing, exceeds the bounds of grounds of justification
such as private defence.
 Previously there were cases referred to as partial excuse cases= which justifies
the reason why X is charged with culpable homicide and not of murder because
although there was intention to kill, the intention is not entirely but to some
extent excusable.- nthuli case
 However, a close examination of these cases reveals that in these cases intention
to kill is absent because X lacked awareness of unlawfulness.

DIFFERENCE BETWEEN CULPABLE HOMICIDE AND MURDER:
CULPABLE HOMICIDE MURDER
Culpability required is negligence Culpability required is intention

STUDY UNIT 3.3: KIDNAPPING:

Kidnapping consists in unlawfully and intentionally depriving a person of his or her
freedom of movement and/or, from the control of parents/ guardians if such a person is
under the age of 18 years.

 The crime is derived from the lex fabia de plagariis in Roman law and was known
in the common law as plagium.
 A human being cannot be an object of theft and therefore this crime is not a form
of theft.
 This crime can be committed in respect of a man, woman or child.

RELATION TO OTHER CRIMES:

 Child stealing is not a separate crime but merely a species of kidnapping.
 Kidnapping has no assume a dual character: it may infringe either of two interest,
namely a person’s freedom of movement or a parent’s or custodian’s control over
a child= where a child is removed without either her consent or without the
consent of her parents.
MEANING OF THE WORDS ‘child’ or ‘minor’
 A child means a minor (under the age of 18 years). Before 2005 the word ‘child’
denoted a person who was a minor in terms of the common law, that is a person
below the age of 21.
Section 17 of the Children’s Act 38 of 2005 provides that a child, whether male or
female, becomes a major upon reaching the age of 18 years.
Parents cannot commit the crime in respect of his or her child-if the father and
natural guardian of a child, having divorced his wife, removes the child from her
care to keep her in his own care, he does not commit the crime, even if the court
has awarded custody and control to the mother of the child.
However, this does not mean that the divorced father can with impunity remove
the child from the care of the mother to whom the court has awarded custody
and control, since by doing so he infringes the court order and may be guilty of
contempt of court.
Elements of the crime:
a) The deprivation of
b) A person’s freedom of movement (or the parental control in the case of a
child):
o The removal is usually effected by force, but forcible removal is not a
requirement.
o The removal may also be effected by craft or cunning, as in the Long case-
where X pretended to be a photographer’s assistant who had to fetch a
little girl from school to photograph her, and in this way obtained
possession of the girl.
o The crime can also be committed even when there is no physical removal,
as where Y is concealed or imprisoned where she happens to be.
c) Unlawfully:
o Unlawfulness may be justified by official capacity ( where a police officer
lawfully arrests someone) or by consent of the person being removed,
unless she is a child= only consent attained without negating Y’s voluntary
agency is legally valid.
d) Intentionally:
o X must know that Y has not consented to the removal, or, if Y is a child,
that her parents or custodians have not consented.
 o X does not need to have to intend to deprive X permanently of her
freedom of movement, it is sufficient if she intends to release Y upon
payment of a ransom, even if this takes places after a few hours.
o If X demands a ransom, she may also be found guilty of extortion.
o X’s motive to deprive Y of her freedom of movement or the parents or
custodians of their control is immaterial for the purpose of liability
=although it may affect the degree of punishment.

DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING:

ABDUCTION (removal) KIDNAPPING (deprivation)
Committed against parental authority over Committed against a person’s freedom of
a minor movement
The minor is removed to enable someone In this case, the motive (reason) for the
to marry her or have sexual intercourses removal is immaterial. It is sufficient if X
with her intends to deprive Y of her freedom of
movement or Y’s parents/ custodians of their
control.
Unlawfulness Unlawfulness
Intention Intention
Without the consent of parents/ guardians

STUDU UNIT 3.4: ASSAULT:

Assault consists in any unlawful and intentional act or omission:
a. Which results in another person’s bodily integrity being directly or indirectly
impaired; or
b. Which inspires a belief in another person that such impairment of her bodily
integrity is immediately to take place.

 The crime of assault as known today, was unknown in our common law- conduct
which would today be punished as assault, was punished as a form of inuria.
 Under the influence of the English law assault developed into a separate
substantive crime.
 An inuria committed against another person’s dignity (dignitas) is punishable in
our law as crimen iniuria.
 An iniuria against another person’s reputation (fama) is punished as criminal
defamation.
  The strong influence of English law in the 19th century is also responsible for the
development of several forms of assault:

Assault with the intent to do assault with the intent to indecent assault
Grievous bodily harm commit another offence

ELEMENTS OF THE CRIME:

a. Conduct which results in another person’s bodily integrity being impaired
(or the inspiring of a belief in another person that such impairment will
take place):
o The conduct which is criminalised by this crime can take different forms-
the most common way in which this crime is committed is by applying
force to Y’s body.
DIFFERENT WAYS IN WHICH THE CRIME CAN BE COMMITTED:
The application of force:
o The most common way in which this crime is committed is by the
application of force by X to Y’s body which may happen either directly or
indirectly.
o Direct application of force occurs when X applies physical force with a
part of her body to a part of Y’s body, thereby striking or at least touching
a part of Y’s body. E.g. X punches Y with her fist, slaps her in her face, kicks
her= the slightest contact with Y’s body will be sufficient to constitute this
crime.
o the courts have held that X commits assault merely by walking to Y and
knocking Y’s hat from his head without his consent.
o In cases of indecent assault, it was held that the mere touching of another
person may suffice, such as where a man places his hand on a woman’s
breast without her consent.
o Indirect application of force: this happens if X does not use a part of her
body to apply force to a part of Y’s body, but uses an instrument or other
strategies for this purpose, such as where X hits Y with a stick, throws
stones at Y, lets a vicious dog loose on Y, snatches away a chair that Y was
 going to sit on from under Y so that she could fall to the floor, spits on Y’s
face
o In this case, it is not required that X should actually injure Y and it is not
required that Y be conscious of the application of force upon her, because
assault can be committed even in respect of somebody who is unconscious
, extremely drunk or asleep such as where X cuts off some of Y’s hair while
Y’s asleep.
o The assault may also consist of X administering poison or other harmful
substances such as a narcotic drink to Y without Y being aware that she is
imbibing the substance.
o In the Marx case X gave three glasses of wine each to two children, aged
seven and five years. After drinking the wine, the children became ill- the
younger one was unable to walk and was in a semi-conscious condition
and X was found guilty of assault.
o The Appellate Division held that to force another person to drink any
substance, constitute a violation of her physical integrity, and amounts to
assault upon her-this is not only when the substance is harmful or
unpleasant to drink, but even if it is harmless as where it is pure water.
o Assault can also be committed through the instrumentality of a third
party- If X orders Z to assault Y and Z executes the order, then X commits
assault.
o X is guilty of assault even if she forces Y by means of a threat to injure
herself, such as stabbing herself with a knife.
o NB in the B case, X was convicted of assault as she observed Z (who was
her lover) assault their child who was two and a half years old(Y). As the
mother of Y she was under the legal duty to protect Y but failed to do so. In
allowing Z to assault Y, she was also liable for the assault upon Y- despite
the fact that she herself performed no positive act as this act can be
committed even by an omission.
o Inspiring fear that force will be applied: assault can be committed
without there being any direct or indirect physical contact or impact on
Y’s body, namely when X inspires fear or a belief in Y that force is
immediately to be applied to her.
 o Examples: X waves her fist in front of Y’s face; X pulls a knife out of her
pocket and pretends that she is going to stab Y.

Requirements for liability for this form of assault:

 Personal violence: there must be a threat of violence against the person
(body) of Y- a mere threat of property is not sufficient.
 Immediate violence: it must be a threat of immediate violence- a mere
threat to inflict harm on Y sometime in the future is not sufficient.
Conditional threat does not amount to assault if X is lawfully entitled to act
in the way that she is threatening to act. Thus, X does not commit assault if
she merely threatens to use force if X should be attacked, because this
amounts to a threat to defend herself.
 Subjective test: the mere fact that X can carry out her threat is not
sufficient.
 the test is whether Y (the person who was threatened)
believed that X intended to carry out the threat and that she
was able to do so.
 The test is subjective in the sense that one must have regard
to Y’s state of mind and what she believed would have
happened.
 If Y does not fear the threat of violence, then no assault is
committed, even though X can carry out her threat and has
the intention to do so.
 Whether X is capable of carrying out the threat is immaterial
(irrelevant). Thus, if X arouses fear in Y, the fact that the
firearm with which X threatened Y was unloaded, would
NOT AFFORD X A DEFENCE.
 All that is required is that X must know that Y believes that
the firearm is loaded and realise that fear has been inspired
in Y.
 words sufficient to constitute assault: the crime could be committed by
mere threats only if the threat was delivered by an act or a gesture or
words.
  What matters is whether fear was inspired, not how the fear
was inspired.
 Fear does not need to be reasonable: it is submitted that fear does not
need to be reasonable because if reasonableness was required, it would be
almost impossible to commit this form of assault in respect of unduly,
timid (easily afraid) or credulous people (gullible), and this would be
undesirable from a policy point of view.

b. Unlawfulness:
o The causing of impairment of Y’s bodily integrity must be unlawful.
o GOJ= private defence, necessity(where X fleeing a burning building about
to collapse, bumps against Y who happens to stand in her way); official
capacity (where a police officer uses force to arrest a criminal); consent
( where a surgeon performs an operation on Y with Y’s consent).
c. Intention:
o X must have intended to apply force to the person (body) of another
person or to threaten her with immediate personal violence- X must have
been aware of Y’s fear
o If X believes that her threat would not be taken seriously by Y, she lacks
the required intention.
o Dolus eventualis suffices.
o If the assault is accompanied with the intention to commit some other
crime such as theft, rape or murder, the separate crime of assault with
intent to commit such a crime is committed.
o Intoxication may in certain circumstances exclude the intention to commit
common (ordinary) assault.
ATTEMPT:
 Instances of attempted assault: where Y is unaware of the threats because she is
asleep or drugged.
  Where she does not understand or appreciate the threats because she is drugged
or where she is aware of the threats and understands them but is completely
unbothered by them.
 Where X intending to assault Y, applies force to Y in the belief that Y is still alive,
whereas Y is already dead -this would amount to an attempt to commit the
impossible.
 Indecent assault is replaced by the new statutory crime of sexual assault.

Assault with the intent to do grievous bodily harm:

 Common assault is assault which is not qualified by an intention to
achieve a certain goal.
 All requirements of assault apply to this crime of assault with the intent to
do grievous bodily harm but in addition there must be intent to do
grievous bodily harm.
 Whether grievous bodily harm is in fact inflicted on Y is immaterial in
determining liability (though it is usually important for the sake of
sentencing)
 It is simply the intention to inflict harm that is important.
 Whether X had the intention to do grievous bodily harm is a factual
question.

Factors which may indicate that X had the intention to inflict grievous bodily harm
are:
 the nature of the weapon or instrument used.
 the way in which the weapon or instrument was used.
 the degree of the violence
 the nature of the injuries inflicted, if any.
 Thus, crime may be committed even though the physical injuries are slight.
 X may be convicted of assault with the intent to inflict grievous bodily
harm on the grounds of not only inflicting violence on Y’s body, but also on
the grounds of threat to inflict grievous bodily harm on Y= the rule that
applies in this case is the same as common assault.
Intentional act of physical violence
Assault with the intent to commit another crime:
 For example, assault with the intent to commit rape, robbery, or murder.
 The requirements for ordinary (common) assault are applicable in this
crime too, in addition there should be an intention to commit the further
crime.
 One of the very few instances where assault with the intent to commit
murder does not overlap with attempted murder is where X means to
murder Y by poisoning her, but events have not yet reached the stage
where Y has swallowed the poison= this will be attempted murder but not
assault with the intent to murder.
RAPE:
Section 3 of the Criminal law (sexual offences and related matters) Amendment Act 32
of 2007 provides the definition for rape as any person who unlawfully and intentionally
commits an act of sexual penetration with a complainant without the consent of the
complainant, is guilty of the offence of rape.

ELEMENTS OF THE CRIME:

A. Sexual penetration of another person (complainant)
B. Without the consent of the complainant :
 Consent is defined in section 1(2) as the voluntary or uncoerced
agreement.

C. Unlawfulness:
 Absence of consent by Y is not a ground for justification, but a definitional
element of the offence.
  Unlawfulness may be excluded by official capacity where a medical doctor
who treats Y in connection with Y’s genital organs , and who in the course
inserts her finger or some object into Y’s vagina or anus.
D. Intention:
 Intention is mentioned in section 3 as a requirement for a conviction of
rape.
 X must know that Y has not consented to the sexual penetration= dolus
eventualis suffices, so that it is sufficient to prove that X foresaw the
possibility that Y’s free and conscious cons4ent might be lacking, but
nevertheless continued to have sexual penetration.
 Whereas proof of absence of consent, reliance is placed on the fact that the
girl is under the age of 12 years at the time of commission of the act, X
must be aware of the fact that the girl is not yet 12 years old or atleast
foresee the possibility that the girl might be under the age of 12 years.
 Reliance can also be upon the woman’s intoxication or mental defect, or
the fact that she was sleeping.


 Before the coming into operation of the present Act, rape was a common law
crime.
 It consisted in a male having unlawful and intentional sexual intercourse with a
female without her consent.
 The slightest penetration by X(male) was sufficient and it was immaterial
whether semen was emitted.
 By intercourse, it was meant that the male inserted his penis into the woman’s
vagina- if he inserted his penis into her anus, he did not commit rape, but
indecent assault.
 The CC in Masiya v DPP extended the definition of the common law crime of rape
by including within its ambit also penetration by a male’s penis into the woman’s
anus.
 The intercourse had to take place without the female’s consent.
  Now it is no longer a matter of concern whether it is the vagina or the anus which
is penetrated or whether the perpetrator is a male or female, whether the victim
is a male or a female or whether the penetration is by a penis or a finger.
Definition of sexual penetration:
 Sexual penetration is defined in section 1 of the Act as:
Sexual penetration includes any act which causes penetration to any extent
whatsoever-
 The genital organs of one person into or beyond the genital organs,
anus, or mouth of another person.
 Any other part of the body of one person, object, including any part
of the body of an animal, into or beyond the genital organs or anus
of another person.
 The genital organs of an animal, into or beyond the mouth of
another person.
 The words ‘genital organs’ are also defined in section 1 of the Act as including the
whole or part of the male and female genital organs, and further includes
surgically constructed or reconstructed genital organs.
 The word ‘causes’ in the definition means that the offence of rape is no longer a
formally defined crime (a crime that consists merely of the commission of a
certain type of act), it is now a materially defined crime (a crime consisting in the
causing of a certain situation, namely, sexual penetration)= the word cause
should be read together with the word ‘include’ in the beginning of the definition.
 Sexual penetration includes all the situations where X performs the penetration
of Y himself/herself, that is with his or her own body using some object to
perform the penetration.

Acts falling within the definition of sexual penetration:

 A distinction is made between:

It must be assumed in
 acts committed by a male in respect of a female:
all these cases that Y is o X a male, inserts his penis into the vagina of the female.
not a consenting party
o The slightest penetration is sufficient.
to the commission of
the act. o It is not required that there should be any emission of semen or
that Y should have become pregnant as a result of X’s conduct.
 o This act is described as the most classic illustration of rape and
under the old common law, it was the only act which qualified as
rape.
 acts committed by a female in respect of a male:
o a female places her genital organs into the mouth of a male-
the female effects a cunnilingus
o a female place the penis of the male into her mouth- the
female effects a fellatio
o a female places another part of her body, such as her finger
into the anus of a male.

 acts committed by a male in respect of another male:

o a male inserting hid penis into the mouth of another male
o a male inserting his penis into the anus of another male
o a male inserting a penetrative object into the anus of
another male

 acts committed by a female in respect of another female:

o a female inserting her genital organs into the mouth of
another female
o A female inserting some penetrative object into the vagina
or anus of another female
o A female inserting some part of a body of an animal into the
vagina or anus of another female.
o A female inserting the genital parts of an animal into the
vagina or anus of another female
Sentencing
 the appropriate sentence for the crime of rape is imprisonment.
 Section 51 of the Criminal Law Amendment Act 105 0f 1997 makes provisions for
the minimum sentences to be imposed for rape.
 Subsection 6 of section 51 states that these minimum sentences are not
applicable in respect of a child under the age of 18 years.
CRIMEN INIURIA
Consists in the unlawful and intentional (serious) violation of the dignity and/ or
privacy of another person.

ELEMENTS OF THE CRIME:

a) The infringement of the dignity or privacy of another person
b) Which is serious:
o This crime is punishable only if the violation of Y’s dignity or privacy is
sufficiently serious or reprehensible character to merit punishment in the
interests of society.
o What is of a sufficiently serious character depends largely upon the modes
of thought and conduct prevalent in a particular community at a particular
time and place and determined by an objective test.
o much will depend upon the parties’ relationship, the age and sex of X and
Y, the degree of publicity attached to the conduct or the fact that the insult
has racial connotation.
o If a woman is insulted by a stranger, this will be viewed more seriously
than when she is insulted by someone she knows.
o If a man indecently exposes himself to young and immature girls, this may
be viewed in a more serious light than such conduct directed at adult
woman.

c) Unlawfulness:
o Consent, necessity, and self-defence are grounds of justification that can
exclude unlawfulness.
o If someone violates another person’s privacy, then the infringement may
be justified by the fact that he is acting in official capacity or with legal
authority such as when a policeman is searching a house for evidence for a
crime)

d) Intention:
 o the crime can be committed intentionally only- negligence can never be
sufficient.
o Intoxication may result in X not being aware that he is violating Y’s dignity
or privacy.
o X must know that he is violating Y’s dignity, which implies that he must
know that Y did not consent to his conduct.

Interests protected:
 the interests protected by this crime are usually designated by the crime dignitas-
this term is merely a formal, collective description of all the rights or interests
protected.
 The constitution recognises a person’s right to dignity in section 10 and right to
privacy in section 14.
 The court regard both dignity and privacy as being protected by this crime
(crimen inuria).

Violation of dignity:
 The crime can be committed either by word or by deed.
 X may either be male or female who commits this crime
 An attack, not against Y himself, but against some group of which he is
affiliated to (e.g. his language group, religion, race or nationality) will
normally not constitute a violation of his dignitas, unless there are special
circumstances from which an attack on his self-respect can be deduced.

Violation of dignity- subjective dimension:

 The act consists of the violation of another person’s privacy or dignity.
 To determine whether there has been an infringement of another person’s
dignity, both a subjective and an objective test are applied.
THE SUBJECTIVE TEST: in the instance of the infringement of dignity- Y
must:
a) Must be aware of X’s offending behaviour.
b) Feel degraded or humiliated by it.
  Dignity, self-respect, and mental tranquillity describe subjective attributes of a
person’s personality.

 Exceptions to the rule: where Y is a young child or a mentally defected child, he

would not be able to understand the nature of X’s conduct and would not feel
degraded by it. Thid does not afford X a defence.
 This crime can be committed in respect of a young child or mentally
defected person.
 As far as proof of the fact that Y felt degraded is concerned, it is usually assumed
that conduct which offends the sensibilities of a reasonable person would have
offended Y’s sensibilities.
 If it comes to light that for some reason Y did not take any offence to X’s
behaviour, then a court will not convict X of the crime.
 In the case of privacy, the state does not need to prove that Y was aware of X’s
conduct- such as where X peeps at Y while she is busy undressing, it is accepted
that X had violated Y’s privacy even if Y was unaware of the fact that X was
peeping at her.

 OBJECTIVE TEST: in this case, X’s conduct must be of such a nature that it would
offend at least the feelings of a reasonable person. If Y happens to be so timid or
hypersensitive that he takes offence at the conduct that would not have affront
(insult) a reasonable person, the law should not assume that the crime has been
committed.
Instances of violation to dignity:
 the crime can be committed by addressing Y’s language which humiliates Y, such
as calling Y a kaffir or a piccanin or to call a woman a whore or a bitch.


Infringement of privacy:
 The most common form of infringement of privacy constituting crimen inuiria is
the so-called peeping Tom= where a man peeps through a window at a woman
undressing.
 Another one is the planting of a listning device in a person’s private apartment
and listening to their private conversations.
 The right to privacy is not an unlimited right, and in certain circumstances,
intrusion on a person’s privacy will be allowed by the law.