Criminal Law

Criminal law (which is to be distinguished from its civil counterpart) forms part of the public law of South Africa, as well as of the substantive law (as opposed to the procedural).

Criminal Law:

Criminal law is the body of law that relates to crime. It regulates social conduct and prescribes whatever is threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people. It includes the punishment of people who violate these laws.

In South Africa, as in most adversarial legal systems, the standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt. The sources of South African criminal law are to be found in the common law, in case law and in legislation.

The criminal justice system in South Africa is aimed at law enforcement, the prosecution of offenders and the punishment of the convicted. It is that part or sub-system of the national legal system which determines the circumstances and the procedures according to which people and legal entities may be punished by the State for criminal conduct.

The South African Constitution entrenches the principle of legality. Its preamble states that South Africa is founded on the supremacy of the Constitution and the rule of law. The Bill of Rights, meanwhile, provides that “every accused person has a right to a fair trial”, which includes the right

  1. not to be convicted for an act or omission that was not an offence under national law at the time it was committed or omitted; [and]
  2. to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.

In terms of the principle of certainty, the crime must not, as formulated, be vague or unclear. The accused must understand exactly what is expected of him/her. The definition of a crime should be reasonably precise and settled, so that people need not live in fear of breaking the law inadvertently. Although the Constitution does not expressly provide that vague or unclear penal provisions may be struck down. If a criminal norm in legislation is vague and uncertain, it cannot be stated that the act or omission in question actually constituted an offence prior to a court’s interpretation of the legislation.

It is also possible to base the operation of the principle of certainty on the provision of section 35(3)(a) of the Constitution, which provides that the right to a fair trial includes the right to be informed of the charge with sufficient detail to answer it. The right created in section 35(3)(a) implies that the charge itself must be clear and unambiguous. To comply with the requirement of sufficient clarity, one should bear in mind

  1. that absolute clarity is not required, because reasonable clarity is sufficient; and
  2. that a court, in deciding whether a provision is clear or vague, should approach the legislation on the basis that it is dealing with reasonable people, not foolish or capricious ones.

Any person that has been arrested or subjected to the Criminal Legal System will most certainly agree that the experience was one of unpleasantness. At P Smith Attorneys we assist our Clients in every aspect of your criminal matter. We ensure that the possibility of a hair raising experience is reduced to the minimum. All of our Clients are assisted with the highest degree of confidentiality and your matter will be dealt with as speedily as possible because we understand the negative impact that a criminal matter can have on your professional and personal life.


Ensure that we are on your side when being involved in a complicated criminal matter. Our experienced Attorneys can assist you immediately with the following legal services, inter alia:

  • Bail applications
  • Offences against a person
    • Assault
    • Assault GBH
    • Criminal negligence
    • False imprisonment
    • Kidnapping
    • Robbery
    • Sexual assault
    • Rape
  • Found in possession of suspected drugs
  • Driving under the influence
  • Attempted murder
  • Murder
  • Crimes against property
    • Burglary
    • Theft
    • Robbery
    • Extortion
    • Fraud