What Is Omission?

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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 …show more content…

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 …show more content…

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

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