Principles of Criminal Law

July 1st, 2014

By Jonathan Burchell

Cape Town: Juta

(2013) 4th edition

Price: R 695 (incl VAT)

958 pages (soft cover)

The fourth edition of this monumental work, Principles of Criminal Law is distinguishable from the previous edition in length, content and also appearance. In the preface the reason for this is adeptly explained, namely that the long chapter in its predecessor (ch 2) on the evolution of the South African criminal law has been omitted. This implies that a reader who needs a fuller or more comprehensive historical survey will, unfortunately, have to refer to a previous edition of this work. The same goes for the chapter on theories of punishment in the 2005 third edition (ch 4).

This accomplished publication is available both in print and in e-book formats (hyperlinked to the third edition of Cases and Materials on Criminal Law) which includes 347 extracts. This allows both students and legal practitioners to toggle between the rules, cases or statutory sources even in a portable and accessible format. Headnotes have meticulously been compiled, translated and included for case extracts and judgments originally delivered in Afrikaans.

The book consists of three parts, divided into numerous sections and no less than 88 chapters.

In the words of Professor Jonathan Burchell, a Fellow of the University of Cape Town, who has published widely in the fields of criminal law and also personality rights: ‘There are considerable changes and improvements to the general principles section’ in this edition in relation to the constitutional debate and academic exchange on the principle of legality following the Masiya v Director of Public Prosecutions, Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (5) SA 30 (CC) case (on the ambit of the common law crime of rape). The chapter on causation has required a re-working following the Supreme Court of Appeal judgment in Tembani v S (2007) 2 All SA 373 (SCA) regarding the role of medical intervention. Revised discussions on the elements of robbery, criminal defamation, corruption and the civil forfeiture of assets are included. A consideration regarding the most recent version of s 49 of the Criminal Procedure Act 51 of 1977 is included to distinguish properly between private defence and public authority as defences, which is evident from the change to the positioning of the chapter dealing with this in comparison to previous editions.

Consent as a defence has also been revisited and controversial related issues such as euthanasia are examined in detail. The extensive changes as a result of the Child Justice Act 75 of 2008 are explained and critically evaluated. The author even pruned his own critique and examination on court cases which had a significant impact on the chapters dealing, inter alia, with provocation, child sexual experimentation, racketeering, sentencing discretion, common purpose liability and the recklessness (or volitional) element of dolus eventualis. Major changes have been made to the section on specific crimes. These are too many to mention here. Predominantly the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 is ‘to blame’ for this. Also, organised crime, dealt with in one chapter in the third edition, has now been divided into seven separate chapters for easy reading.

Burchell is a top-class authority on criminal law.

All relevant judgments delivered up to the end of 2012 have been included and even important ones up to 4 October 2013. As in the previous editions, central principles/issues are highlighted in bold typeface and in digestible form in each chapter, which is of tremendous assistance to practitioners. Even the evocative and enigmatic photograph used on the cover, taken by Suretta Venter, is exceptional and the final production has involved the contribution of a dedicated team of experts. The discussion of and comments in the book reflect the latest case law and obviously also the view of the author.

This edition required skill, efficiency, patience, dedication, invaluable knowledge and experience. It is interspersed with cryptic and enlightening commentary by the author. The author has managed to provide both practitioners and academics with a most useful and necessary handbook which can be recommended unreservedly. It is indeed an extraordinary accumulation of judicial thinking. One commiserates with the impecunious student/candidate attorney who is obliged to acquire this voluminous leviathan. This tremendous work has been prepared with precision and meticulousness and elicits nothing but profound respect for which the author can justly be applauded.

Llewelyn Curlewis LLM (Unisa) BLC LLD Cert Forensic Accounting (UP) is an attorney at Pieterse & Curlewis Inc in Pretoria. Dr Curlewis is the president of the Law Society of the Northern Provinces, a member of its criminal law committee and, vice-chairperson of the criminal law committee of the Law Society of South Africa.

This article was first published in De Rebus in 2014 (July) DR 56.