Considering the ratio Decidendi of the three cases respectively, we find that a legal duty must be measured against certain circumstances. How does the South African Law go about determining omission that lead to liability and does the criteria we use fulfil the principles of legality and rules set out in the Constitution of South Africa? It is further necessary to look at the relationship between the legal convictions of the community and the principles of legality.
An omission is when someone has a legal duty to act , which includes: the interest of the parties involved; their relationship and the social impact of convicting the accused for that particular crime.
The legal duty to act.
The circumstances where omission leads to liability
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Therefore, a Court should confirm if a legal duty was imposed on the policemen , as stated in a statute or in common law, and then look at the moral duty based on the community's views.
Legal Convictions of the community
The criminal Justice System and Common law provide no definition for conduct that amounts to a crime. It, therefore, depends on public policies which are influenced by pressures from different social-political spheres. To what extent are we able to adapt the common law if the views of conduct with is immoral , in that particular time and place, constantly change?
Conduct that amount to crime must clearly be defined either by the common law or in an act of parliament to comply with the principles of legality: ius acceptum. There is the emphasis that criminal conduct is not merely wrong due to its social harm but rather to the legislature stating its
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I recognise the need for adapting common law . Burchell states that the benefit of adapting common law, where a legal duty exists, is we use the "appropriate stigma and penalties". Similarly, Snyman states we should use statutory provision above the common law when determining liability.
When viewing conduct, that potentially leads to liability, the court first considers it in terms of statues; then in terms in common law and finally from the perspective of the community. The effect is that legislature adapt statues and common law using guidelines set out in the Constitution of the Republic of South Africa; consequently abiding the Bill of Rights which, in essence, protect the moral standards of the community. In S v Gaba it is important to recognise that the court considered the morality of officer's conduct, but strictly abide by what was stated in the Criminal Procedure Act 51 Article 88.
I prefer usage of statutory provision creating a legal duty to act as convictions based on moral duty creates “dangerous precedent” .
Constitution of the Republic of South Africa
Strict liability strikes a good balance between the regulatory offences and the principle that the morally blameworthy may be punished by having to prove that the prohibited act was done beyond a reasonable doubt. Negligence is presumed, unless the defence establishes a defence of
In order for a person to be found guilty of a crime, two elements must be present which are the actus reus (guilty act) and the mens rea (guilty mind). The first part of this essay seeks to consider the liability for homicide offences and also assess whether Jason, Welch, Ellis and Stevens have any potential defences based on the crimes they committed. P360 Will Jason be held liable for the death of pinky? Pinky suffered harm from Jason’s act, in a situation like this, we would need to look at s. 18, s. 20 and s. 47 of the offences against the person act 1861.
It is assured that the fundamental purpose for our criminal law is to prevent crime, punish offenders, assist and protect. However, there are abounding cases where criminal law has punished a convict who was proved innocent . A conviction is necessary to display the order they obtain to keep people safe in society. If a criminal was not caught the people would look down upon the system. In many cases, the deputy will arrest an individual who seems to fit a certain description that they know will lead to an arrest.
The law should hold itself to it’s own standards in order to be
Many times there are two different ideas or rules that get compared to each other when they focus on completely different subjects. In such case, an article entitled, “The Common Law Origins of the Infield Fly Rule,” published in the Univ. of Pennsylvania Law Review, 1975. In this article, the author, William S. Stevens, drew an analogy between the development of baseball’s “infield fly rule” and the corresponding development of English common law as it applies to the regulation of human behavior. In order to understand this analogy, one must first get familiar with the concept behind the, “Infield Fly Rule” and English Common Law (Anglo-American Common Law) to see how does this analogy calmed by William S. Stevens. Understanding the idea of
Assignment #1 Review questions Chap. 1 p. 26: 1. A single standard of ethics cannot be applied to all criminal justice agencies. The world is too complex to legislate morality and ethics. The cultures that make up each part of the world are not the same.
Sam Freeman Jr Introduction to Criminal Justice Ethics (CJUS261) Professor Umeki Ramsey Unit 1 – Discussion Board 2 November 18, 2015 Police officers sole purpose in the United States is to protect and serve the county, city municipality, and state government to ensure that the law is being upheld by everybody within them. Peace officers assume a focal part in the law authorization framework. They screen criminal movement, tune in group watches, react to crisis calls, issue tickets, make captures, examine violations and affirm in court as required. It is no secret that the United States inherited much of Great Britain governmental institutions. In the Bible, Jesus says “to whom much is given, much will be required” (Luke 12:48).
Ethics is described as the moral believes by which a person will conduct a specific activity. It is these moral believes between the client and legal professional that need to agree to decide the outcome of the case. This essay will handle with legal ethics regarding to being a fit and proper person, the clients needs, professional conduct, professional responsibility and the legal system in South Africa. Before being admitted as a legal professional a person needs to be regarded as being a fit and proper person to practice the noble and precise field of law. The requirement of being fit and proper is seen as one of the most important characteristics of the legal profession but is not to be found in legislation nor is it defined.
For people who work in criminal justice, the law may even conflict with a chosen moral system. This could be true if a person bases his or her beliefs on the moral teaches of a religion or other system. In a sense, the belief in a universal system of morals implies the application of a personal morality to the enforcement of the law. If the goal is to minimize the personal morality of the official, then a system of moral universalism would be deficient as an officer would be less capable of bringing his or her own personal morality in to official business. He or she would judge that the offender is immoral in some way and, therefore, make a personal judgment that is separate from the law.
Therefore, for the police to be involved, there must be a crime that has been committed or a violation of law that has been put in place by
A person is generally not liable for failing to act yet when an omission creates an offence and a duty to act can be established, criminal liability can occur. A case which states the general rule is R v Khan and Khan . In this case both
[5] Common law works in a different way, the judges rather than the Parliament make common law or ‘judge-made law’. Considering criminal and civil cases, the judges take decisions based on the stare decisis principle (Latin “to stand by things decided”, the legal principle of determining points in litigation according to precedent [4]), deliver rulings and create precedents, thus applying the law to real life situations. Therefore, the value of the precedent is very high in the English Common Law system. The strengths of common law
The law is an intriguing concept, evolving from society’s originalities and moral perspectives. By participating in the legal system, we may endeavour to formulate a link between our own unique beliefs and the world in which we live. Evidently, a just sense of legality is a potent prerequisite for change, enabling society to continue its quest for universal equality and justice. Aristotle once stated that "even when laws have been written down, they ought not to remain unaltered".
The criminal justice system is that subsystem of the national legal system which determines the circumstances in which and the procedure according to which individuals may be punished by the state for conduct that is defined as a crime. For the sake of convenience, a distinction is normally drawn between the substantive aspects of the criminal justice system and its procedural aspects. The study of criminal law generally focuses on substantive law; namely, the principles of law according to which criminal liability (guilt) is determined, whilst the law of criminal procedure, together with the law of evidence, focuses on the manner in which this is done, together with the way in which offenders and suspected offenders are to be treated by the
What I will explain to you in this article will, how we are connected with the law and I hope, make you see sense in the importance of our laws in the society we live in. To be against the importance of laws in our society would show one to be ignorant and naïve. I encounter the law on a daily basis when I am driving. I have to follow the speed limit of each road, I have to signal before changing lanes, my vehicle must be in good condition in order to safely drive and I must obey all road signs as they are set in place to ensure the safety of everybody.