A criminal offence is the most serious category of legal wrong recognised in South African law. When someone commits a criminal offence, they have done something, or failed to do something, that the law of the country prohibits, and the State is authorised to punish them for it. The punishment can take the form of imprisonment, a fine, correctional supervision, or another sentence imposed by a criminal court.
Unlike a civil wrong, which is settled privately between the parties, a criminal offence is prosecuted on behalf of the public. The National Prosecuting Authority (NPA), acting for the State, decides whether to charge an accused person and carries the case through the criminal courts. A conviction can result in a criminal record that follows a person for life, which is why understanding what does and does not amount to a crime is so important.
This guide sets out what a criminal offence is in South African law, how crimes differ from civil wrongs, the elements the State must prove, the main categories of crime, and the penalties the courts may impose. It draws on the Criminal Procedure Act 51 of 1977, the common law as developed by our courts, and the Constitution of the Republic of South Africa, 1996.
What Is a Criminal Offence in South African Law?
In South African law, a criminal offence is defined as conduct, either an act or an omission, that is prohibited by statute or by the common law and is punishable by the State. The defining feature is that the conduct is treated as a wrong against the community, not merely against an individual. The State therefore investigates, prosecutes, and, on conviction, sentences the offender.
Some offences are created by legislation. The Criminal Procedure Act 51 of 1977 sets out the procedure for prosecuting crimes, while specific statutes such as the Prevention of Organised Crime Act 121 of 1998, the Sexual Offences and Related Matters Act 32 of 2007, and the Cybercrimes Act 19 of 2020 create particular offences. Other offences, such as murder, theft, and assault, are crimes at common law, developed over centuries by the courts.
Crimes Versus Civil Wrongs
The same conduct can sometimes be both a crime and a civil wrong. A person who assaults another may be prosecuted by the State for the crime of assault and may also be sued privately in delict for damages. The two processes are separate and have different purposes.
- Purpose. A criminal prosecution aims to punish, deter, and protect the public. A civil action aims to compensate the injured party.
- Parties. A crime is prosecuted by the State on behalf of all of us. A civil wrong is brought by the person who suffered the loss.
- Standard of proof. A crime must be proved beyond reasonable doubt. A civil wrong is proved on a balance of probabilities.
- Outcome. A conviction leads to a sentence such as imprisonment or a fine. A civil finding leads to an order for damages or another civil remedy.
The Elements of a Criminal Offence
For the State to secure a conviction it must prove, beyond reasonable doubt, every element of the offence charged. Most crimes in South African law are built on two core elements, drawn from our Roman-Dutch common law heritage.
- Actus reus (the conduct). The physical act, or, in some cases, a failure to act where there was a legal duty to do so. An omission is only criminal where the law imposes a positive duty, such as a parent’s duty to care for a child.
- Mens rea (the fault). The mental element, usually intention or, less often, negligence. The accused must have known the act was wrongful and chosen to do it anyway, or foreseen the consequences and reconciled themselves to them (dolus eventualis).
A small number of offences impose strict or vicarious liability, where the State does not need to prove mens rea. These are usually created by statute for regulatory purposes, such as certain traffic and environmental offences. Outside this narrow category, both actus reus and mens rea must be present at the same time for conduct to be criminal.
Causation and Unlawfulness
Beyond the two core elements, the State must also show that the conduct was unlawful and, in result crimes such as murder or culpable homicide, that it caused the prohibited consequence. Conduct that would otherwise be criminal may be justified and therefore lawful. The classic examples are private defence, necessity, and the carrying out of a lawful duty, all of which can negative unlawfulness even where actus reus and mens rea are present.
Categories of Criminal Offences in South Africa
South African criminal law does not use the felony and misdemeanor distinction found in some other systems. Instead, offences are grouped by the interest they protect and by their seriousness for purposes of bail, jurisdiction, and sentence.
- Crimes against the person. Murder, attempted murder, assault (common and assault with intent to do grievous bodily harm), robbery, kidnapping, and sexual offences under the Sexual Offences Act 32 of 2007.
- Crimes against property. Theft, robbery with aggravating circumstances, housebreaking with intent to steal, fraud, forgery and uttering, uttering, malicious damage to property, and arson.
- Crimes against the administration of justice. Perjury, defeating the ends of justice, contempt of court, and bribery of officials.
- Statutory and regulatory offences. Road traffic offences under the National Road Traffic Act 93 of 1996, environmental crimes, exchange control contraventions, and compliance failures under the Companies Act 71 of 2008.
- Inchoate offences. Attempt, conspiracy, and incitement. The accused can be convicted even where the crime is never completed, although the sentence is often lighter.
How a Criminal Case Is Prosecuted
A criminal matter usually begins with a complaint or report to the South African Police Service (SAPS). SAPS investigates, gathers evidence, and refers the docket to the National Prosecuting Authority. A prosecutor, employed by the NPA, then decides whether there is a prima facie case and, if so, on what charge the accused should be arraigned. The victim of the offence does not prosecute and cannot privately stop a matter once the State has decided to proceed.
Less serious offences are heard in the District or Regional Magistrates’ Courts. The most serious offences, such as murder and treason, are reserved for the High Court. Bail, the right to silence, the right to be represented by a lawyer, and the right to a fair trial within a reasonable time are protected by section 35 of the Constitution and by the Criminal Procedure Act.
Penalties for Criminal Offences
Sentencing is at the discretion of the court, exercised within statutory limits and the principles set out in cases such as S v Zinn 1969 (2) SA 537 (A). The classic triad requires the court to balance the seriousness of the offence, the interests of the accused, and the interests of society. Statutory minimum sentences, introduced by the Criminal Law Amendment Act 105 of 1997, apply to a list of serious offences unless substantial and compelling circumstances justify a lesser sentence.
- Imprisonment, including life imprisonment for the most serious offences such as premeditated murder.
- Fines, either as an alternative to or in addition to imprisonment.
- Correctional supervision and community service under the Criminal Procedure Act.
- Suspended sentences, where part or all of the punishment is suspended on conditions.
- A period of imprisonment followed by a period of correctional supervision.
A conviction also carries consequences beyond the sentence itself. A criminal record can affect employment, travel, the ability to obtain certain licences, and applications for credit. Some convictions may, after a period, be expunged from the register under the Criminal Procedure Act, which is a separate process that does not happen automatically.
Frequently Asked Questions
What is the definition of a criminal offence in South Africa?
A criminal offence is conduct, either an act or an omission, that is prohibited by statute or by the common law and is punishable by the State. The defining feature is that the conduct is treated as a wrong against the community and is prosecuted on behalf of the public by the National Prosecuting Authority.
What is the difference between actus reus and mens rea?
Actus reus is the conduct element, the physical act or, where there is a legal duty, the omission. Mens rea is the fault element, usually intention or, less often, negligence. For most offences the State must prove both beyond reasonable doubt and show that they coincided in time.
Does South Africa distinguish between felonies and misdemeanours?
No. South African law does not use the felony and misdemeanour distinction found in some other systems. Offences are instead classified by the interest they protect and by their seriousness for purposes of bail, court jurisdiction, and sentence. Legislation such as the Criminal Law Amendment Act 105 of 1997 sets minimum sentences for the most serious offences.
Can a person be guilty of a crime without intending to commit it?
In most crimes the State must prove intention or negligence as the mens rea. However, a small number of statutory offences impose strict liability, where proof of the conduct alone is enough. These are typically regulatory offences, such as certain road traffic and environmental contraventions, created by specific legislation.
Who prosecutes a criminal offence in South Africa?
Criminal offences are prosecuted by the State through the National Prosecuting Authority. The victim does not directly prosecute the case and cannot privately stop it once the NPA has decided to proceed. The matter is heard in the Magistrates’ Court or, for the most serious offences, the High Court.
Get help with a criminal law matter. If you have been charged with a criminal offence, or you are under investigation, the Criminal Law department at Otrebski Attorneys can assess the docket, advise on the elements the State must prove, and represent you from the bail application through to trial and sentence. Our women-led practice, founded by Director Nastasja Otrebski, is rated five stars on Google from 12 reviews and is a Level 4 B-BBEE contributor.
Disclaimer. This article is general information about criminal offences in South Africa and is not legal advice. The elements of an offence, the procedure, and the possible sentence all depend on the charge, the applicable statute, and the facts of the matter. A criminal record can have lasting consequences, so for guidance on a specific case consult a qualified criminal defence attorney without delay.