In criminal justice, incapacity restricts a person`s freedoms as punishment for their criminal act. Incapacity removes offenders from society and keeps them in a purpose-built facility. This prevents them from committing further crimes. Disability cannot repair past crimes; However, it prevents future crimes. Deterrence is one of the main objectives of criminal law. The purpose of deterrence is to deter members of society from committing criminal laws. Fear of punishment is general deterrence and discouragement. In summary, there are five main reasons or justifications for imposing criminal punishment, all of which have their adherents and criticisms in modern societies. It is important to note that the objectives of criminal justice systems described above are not static, but may evolve, change and even merge over time, often due to contemporary cultural values and political priorities (see Garland, 1990).

While the relative importance that should be given to different criminal justice objectives is the subject of much debate, it is increasingly recognized that reprisals must be balanced against other considerations that contribute to the rehabilitation of the offender, the reintegration of the victim and the long-term protection of society. It is also important to note that illegality is a pervasive and pervasive requirement of criminal liability under South African law. It is required for each offence without exception and, if it is not taken into account in the definition of a criminal offence, it is considered an « implied » requirement and is simply read. [14] Another point worth mentioning is that, in the creation of criminal offences, it is by no means usual to prescribe all possible defences, let alone those that must be read in relation to the requirement of illegality. As Snyman notes, « Normally, Parliament does not add words like `unless the defendant acted in self-defense, necessity, in official capacity, or in obedience to orders.` » [15] The reason for this, as Snyman continues, is that there are criteria that go beyond the requirements of defining the offence – beyond the « letter of the law. » [16] These are value judgments which, as we have seen, are based on the legal convictions of the community as enshrined in the Constitution. Nor can one be held responsible for the commission or omission of an act, but for a prohibited act (also known as a « condition »). Examples include possession of a prohibited substance or material, or drinking alcohol in public. « Superficially » because it seems unfair to punish someone who did not willingly do or refrained from doing something. [19] How then is a situational crime acceptable? On closer inspection, it seems that they are not only punishing forbidden situations. Instead, they appear to punish a defendant for an act or omission that led to the prohibited situation, or for an omission to end such a situation. Thus, the accused is not punished for the situation itself, but for an act or omission that created the situation, or for an omission to put an end to a prohibited situation – which, if voluntary, are consistent with general principles.

One case in which the defendant was punished for failing to terminate the prohibited circumstance is S v. Brick. [20] In this case, the respondent had received unsolicited pornographic material in the mail (the possession of which was illegal at the time). About 24 hours later, he had not thrown away the equipment or reported the matter to the police. He was convicted of possession of prohibited material for failing to put a speedy end to the situation. One case in which the issue of past conduct was raised was R. v. van Achterdam,[21] in which the defendant was found intoxicated staggering in the complainant`s garden. The complainant was a police officer who dragged him down the street (a public place) where he arrested the accused for drunkenness in a public place. The court quashed the conviction on the basis that it was not the defendant`s act that placed him in the prohibited circumstances or situations. This case shows that the prohibited circumstance is not sufficient to lead to a conviction, but that a wilful act or omission of the accused is required.

Thus, our law of last resort and subject to all other liability requirements (including wilful nature, illegality, legal capacity and fault) punishes positive conduct and omissions in the face of legal obligations. It also superficially punishes situations – although these situations must have arisen from positive action or the inability to end the forbidden situation. It is trivial that an accused can only be punished for what he did, contrary to what he only thought – as bad as those thoughts may be. [1] Our criminal law requires at least an objective physical manifestation of the evil state of mind of the accused. And while this may take the form of mere words,[2] it is clear that bad thoughts alone are not enough to elicit responsibility. While positive behaviour (acts/orders)[3] is prima facie (i.e., prima facie) considered illegal, omissions are prima facie considered lawful. For an omission to be considered unlawful, the prosecution must convince the court that the defendant was legally required to act (making its inaction (omission) illegal. It is useful to remember that illegality is the requirement that is excluded for reasons of justification such as private defence, necessity or consent. If an accused succeeds in proving a justification, his conduct is (ultimately) considered lawful. In the case of commissions (positive behaviour), the accused can only invoke a justification to overturn the conclusion that his conduct was unlawful.

However, in the case of omissions, the accused has two reasons to avoid concluding that his conduct was unlawful: first, that he was not legally required to act in the first place; and, further, that his conduct was justified in any event. For example, although I am legally obliged to control my vicious dog, it may be justified to impose it on someone who attacks me – if I have the right to act as a private defense. The test of our law in determining whether there is a legal obligation is the legal beliefs of the community as shaped by the values of the Constitution. The general rule that the legal convictions of the Community determine the existence of a legal obligation was expressed in Minister van Poliesie v. Ewels. [4] In this case, the Applicant was attacked by the police sergeant in a police station under police control in the presence of several other police officers who did not intervene. The question arose as to whether the other services (the lower police officers) were legally obliged to intervene in the circumstances. Rumpff CJ (in unanimous judgment): He accepts the premise that there is no general obligation on a person to avoid harm to another person, even though that person could easily prevent such harm, and even if, for purely moral reasons, that person could be expected to act positively to prevent harm. However, it is also accepted that, in certain circumstances, there is a legal obligation for a person to prevent harm from another person. It appears that the stage has reached which an omission is considered unlawful conduct when the circumstances of the case are such that the omission provokes not only moral indignation, but also when the legal convictions of the community require that the omission be considered illegal. The police officer is not only a deterrent and detective, but also a protector.

The complainant was assaulted in the police station under police control and in front of a number of police officers for whom it was possible, if not easy, to prevent or stop the complainant`s assault jointly. Having regard to all the circumstances, I believe that the duty of the police to assist the applicant was the legal duty. This test (of the community`s legal beliefs) must now be interpreted as being shaped by the values of the Constitution (Carmichele v. Minister of Safety and Security). [5] [20] With respect to questions of fact, the main concern is to merge the forward-looking objective test of reasonable person applicable in the context of negligence with the retrospectively objective test appropriate to questions of illegality (JC Van Der Walt & JR Midgley Principles of Delict (2005) 71; J Neethling, J.M. Potgieter & PJ Visser Law of Delict 5 ed (2006) 141–2). With respect to negligence, the reasonable person knows only what he would know in his situation (S v. Goliath 1972 (3) SA 1 (A) 11; R v.

Mbombela 1933 AD 269; S v. Ngubane 1985 (3) SA 677 (A)). This is because we have to locate the reasonable person in the defendant`s circumstances and the reasonable person cannot know which circumstances do not allow him to do so. If, having regard to the circumstances of the defendant in which the reasonable person is hypothetically placed, the reasonable person could not know that, for example, the gun pointed at him is only a toy, we must conclude that the reasonable person may well think that he is being attacked. It would therefore be reasonable for the accused to believe that he is being attacked. The test of illegality differs considerably because of the perspective that must be adopted. Illegality is determined by reality – whether the accused was actually attacked. It does not matter how reasonable it may be, prospectively, for the accused to believe that he or she has been attacked.