Strict liability offences : are they not in conflict with purpose of sentence and constitutional expectations?
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North-West University (South Africa).
Abstract
Aim of the study: The intention of this study is, generally, to show that strict liability has
no place in a democratic society based on human dignity, equality and freedom , as it
undermines the purpose of sentence and, more importantly, the spirit of the
Constitution. The main objective is to make recommendations to the Constitutional
Court regarding the uncertainties surrounding the constitutionality of strict liability
offences. This will , hopefully, lead to this principle being declared unconstitutional.
Research procedure and methodology: Various methods will be used to achieve the
aim of this research , including extensive reading and critical analysis of books, journal
articles , internet sources and reported cases on the topic. In addition , the approach of
foreign legal systems to strict liability offences will be explored in order to establish
whether such systems offer us guidance on how to deal with strict liability offences
without contravening the provisions of the Constitution.
Conclusion and recommendations: As with other countries, strict liability offences are
part of South African criminal law, with fault or mens rea forming an integral part of our
criminal justice system. In the past it was accepted practice that mens rea should be
proved beyond reasonable doubt before a person could be found guilty of a crime. This
was the position until the introduction of strict liability offences into English law during
the 19th century. This introduction brought about a dramatic change in perspective, with
mens rea forming an important element of criminal liability.
This controversial development in the law was met with two opposing opinions, that is,
those in favour of this practice and those against it. The argument in favour of strict
liability was to the effect that these are statutory offences and not real criminal offences,
and , as such, they are only invoked for public welfare offences. They further argue that
strict liability offences attract lenient sentences. The critical response to these
justifications has been that the distinctions between sanctions for acts which are morally
wrong and prohibited by law do not change the fact that the sanctions are criminal in
essence and that criminal sanctions without blameworthiness have little support in
either deterrent or retributive theory.
The opposition to strict liability arose in South Africa as far back as the 1970s with the
Viljoen Commission enquiry into the South African penal system. Since the inception of
strict liability, the law has evolved, with the South African legal system changing from
Parliamentary sovereignty to constitutional supremacy. The effect of the change has
been that the law practised in South Africa is supposed to be aligned with the
Constitution. The Constitution has also authorised courts, when developing the common
law or interpreting statutes, to consider international and foreign law. Accordingly,
consultation has taken place with other countries on the way in which they approach
strict liability offences.
The research revealed that there are similarities in the criminal law approaches of all the
countries consulted in that they all have a high regard for the element of mens rea.
However, there is also an acceptance that the introduction of strict liability is necessary
to protect people from harm . Courts from these countries are of the view that it should
not be left up to them to interpret whether the legislature requires the offence to be strict
liability or not. Consequently, they prefer the legislature to make its intentions clear on
the statute. This study shares the view of Snyman that the principle of strict liability will
not pass the constitutional muster. The argument held by this study is that strict liability
infringes on the right to remain silent, the presumption of innocence, privilege against
self-incrimination and the right to a fair trial, as enacted in the Constitution.
Description
LLM, North-West University, Mahikeng Campus
Keywords
Strict liability, Constitution, Apartheid, Punishment, Colonialism, Mens rea, Transformative constitutionalism, Crime, Colonial regime, Vicarious liability, Common law, Defamation, Racial segregation, Public welfare offences, Actus reus, Due diligence, Regulatory offences, Fundamental rights, Sanctions, Retributive theory, Reformative theory, Preventive theory, Deterrence theory, Sentence, Minimum sentence, Restorative justice, Guilty mind, Fault