Criminal Liability, Public Policy, and the Principle of Legality in the Republic of South Africa

• NCJ Number: 88038
• Journal: Journal of Criminal Law and Criminology Volume: 73 Issue: 3 Dated: (Fall 1982) Pages: 1061-1108
• Author(s): L W Potts
• Date Published: 1982
• Length: 48 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

While South Africa appears to adopt the traditional common law view of the criminal law, the shift in the kinds of conduct made criminal under these laws enables the regime to take punitive and preemptive actions against those who oppose the preservation and promotion of white domination.

Abstract

A comparison of the laws of various common law countries shows that South Africa stands alone in making all forms of sedition, from acts of high treason to acts embarrassing the state, capital offenses. Further, South Africa includes in its definitions of 'terrorism' and 'sabotage' many activities which are not deemed seditious in the other common law countries. These activities include obstruction of the free flow of traffic, trespass, possession of a weapon, interference with the maintenance of law and order, aggravated assault, creation of financial loss, and promotion of any object by intimidation. While such acts may be criminal in other common law countries, South Africa considers them subversive of the political and social order. Not only are many of the provisions of the South African seditious activities statutes vague, such as those outlawing the promotion of feelings of hostility or the interference with the maintenance of law and order, but some of them are broad enough to ensnare almost any opponent of the regime. The statutes outlaw, for example, causing or promoting general dislocation, disturbance or disorder, furthering or encouraging the achievement of any political aim, or promoting by intimidation the achievement of any object. Another crucial distinction between South African law and that of other common law countries is the concept of intent. Although the prevailing common law approach requires a clear connection between the act and its possible or probable effect, South Africa imposes criminal liability for actions which hold any possibility of inciting violence or resulting in harm to the state or social order. A total of 443 footnotes are provided.