Glossary of Criminal Law Terms

Introduction

This glossary provides definitions of key criminal law and procedure terms in South African law. The terminology reflects the common law foundations of criminal law, with significant constitutional influence on criminal procedure.

Key Terms

Mens Rea: Latin for “guilty mind.” The mental element of a crime, encompassing intention (dolus) or negligence (culpa). Mens rea must coincide with the actus reus for criminal liability.

Actus Reus: Latin for “guilty act.” The physical element of a crime, consisting of a voluntary act or omission that causes a prohibited consequence. The actus reus must be voluntary and unlawful.

Dolus Eventualis: A form of intention where the accused foresees the possibility of the prohibited consequence and reconciles themselves to it. This is distinguished from dolus directus (direct intent) and dolus indirectus (indirect intent).

Dolus Directus: Direct intention, where the accused desires the prohibited consequence and acts with the purpose of achieving it. This is the highest form of intention.

Private Prosecution: A prosecution instituted by a private individual rather than the state. Section 7 of the Criminal Procedure Act 51 of 1977 allows private prosecutions where the prosecuting authority has declined to prosecute and the complainant has a substantial and peculiar interest in the matter.

Plea Bargaining: A process under section 105A of the Criminal Procedure Act where the accused and the prosecutor agree on a plea and sentence, subject to court approval. Plea bargaining promotes efficiency in the criminal justice system.

Autrefois Acquit/Convict: A plea that the accused has already been acquitted or convicted of the same offence, preventing double jeopardy. The Constitution protects the right not to be tried again for an offence of which the accused has been acquitted or convicted.

Nullum Crimen Sine Lege: Latin for “no crime without law.” The principle of legality in criminal law, requiring that conduct must be recognised as criminal at the time it was committed. This principle is entrenched in section 35(3)(l) of the Constitution.

Bail: The release of an accused person from custody pending trial, subject to conditions and often the payment of money. The Constitution guarantees the right to bail in certain circumstances.