South Africa is considered to have one of the highest crime rates in the world. With such high crime rates, what does our legal culture concerning crimes have to do with it, or say about it?

Crimes can be categorized into common law and statutory ones. Common Law crimes include those crimes whose genesis is not in any statute or edict that is passed by a legislature, but rather in the decisions that follow the adjudication of conflicts by a judge or someone considered one. Common Law crimes include theft, murder and rape.
On the other hand, statutory crimes are those crimes which are created through the passing of statutes by a legislature. As an example, South African statutory crimes include the offences in the Prevention and Combating of Corrupt Activities Act of 2004.

Common Law crimes find their genesis in the instance of conflict resolution thus creating norms and rules to govern future conflicts. This ‘instance of conflict’ is the case or suit being brought forth by the parties involved themselves. That is, the purported person who did harm and the person to whom harm was done.

This distinction helps us realise an important aspect of crime, which is the necessity of harm directed towards the rights of another. Common law crimes have the ‘state’ or general collective with no rights as the plaintiff in proceedings. The crucial aspect of the state’s plaintiff role though is that an illegal action directed towards another person (victim), is the basis for the legal proceedings and they centre around that.

Since they stem from a legislature that enacts them in a situation outside of conflict resolution, by their nature statutory crimes cannot have this grounding in identifiable harm done to others.

This does not mean that statutory crimes cannot still be sound in terms of justice in that they seek to regulate harmful behaviour towards the rights of others. The greatest example of just statutory crimes would be the majority of the offences in the Sexual Offences and Related Matters Amendment Act of 2007.

What makes an offence sound in term of justice then becomes whether the action it regulates, ordinarily and reasonably, is a violation of another’s rights. Murder is a sound offence because the action of intentionally and illegally killing another violates their right to life. Rape is a sound offence because the action of penetrating another sexually without their consent violates their right to dignity and self-ownership/ bodily autonomy.

Yet not all statutory crimes have a clear protection of rights as their basis of existence or operation. There is legislation that regulates commercial sectors like the Banks Act of 1990 alone which has offences that have no victims. With penalties like a fine, jail time or both, for actions like having an interest in an overseas trust as a bank without informing the Prudential Authority (Section 52 (1) (d) (i) of the Banks Act).

Statutory offences lend themselves more to abuse by political actors for their ends since their genesis is the legislature, the seat of politics. The offences in commercial laws like the Banks Act show the perversion of justice by political ends since Banks are one of the most heavily regulated sectors and a favourite punching bag for regulators.

Therefore, it is inevitable that we find ourselves with offences against the paying out of dividends as a bank without informing the Prudential Authority (Section 78 (1) (k) of the Banks Act) being punishable by a fine or a ten-year prison term or both. There are plenty of examples in other laws too where actions which do not harm another’s rights are sanctioned.

The criminalisation of actions that have no identifiable victims is unacceptable in a South African context that has actions with victims = for example, murders occurring at a high rate. When resources are expended on policing behaviour that harms no one, resources are diverted away from those crimes that actually have victims.

The criminalisation of benign and innocuous actions is fundamentally a violation of section 12 of the Constitution, which sets out the constitutional framework for criminal justice in South Africa. It provides that nobody may be deprived of freedom without just cause, and that everyone must be free from all forms of violence, including violence by the state.

Crimes which have no identifiable harm to another should be removed from statutes. They are clear violation of Section 12 of the Constitution. South Africa also has limited resources which should be directed towards those crimes that have victims. This change in our legal culture and aligning it more with our constitution will be a good strategy in the war against violent/harmful crime.

Zakhele Mthembu BA Law LLB (Wits) is a legal researcher at the Free Market Foundation. 

This article was first published by News24/CityPress on 28 February 2024