Gateway
The Archway
Inchoate crimes punish conduct that falls short of a completed crime.
The Sign
Not every crime reaches its intended conclusion. Inchoate ("anticipatory") crimes punish steps taken toward a crime — even when the crime itself is never completed.
Three Pathways
- ATTEMPT — a common-law crime: conduct proceeding beyond mere preparation toward a crime that is not completed
- CONSPIRACY — a statutory crime under s 18(2)(a) of the Riotous Assemblies Act 17 of 1956: an agreement to commit (or to aid in committing) a crime
- INCITEMENT — a statutory crime under s 18(2)(b) of the Riotous Assemblies Act 17 of 1956: inciting another to commit a crime
Attempt is a common-law crime; conspiracy and incitement are statutory (s 18(2)(a) and (b), Riotous Assemblies Act 17 of 1956). Liability crystallises before the main offence is finished.
The Gateway
The Inchoate Gateway sits between the general principles (Districts 1-6) and the specific crimes. Once the substantive crime IS completed, charge the completed crime — the attempt merges into it.
Attempt
The Rehearsal Hall
Attempt: conduct proceeds beyond mere preparation; the crime is never completed.
Attempt requires: (1) an intention to commit a specific crime; and (2) conduct that goes beyond mere preparation (the commencement of execution). Attempt is a common-law crime.
Completed vs uncompleted attempt
A COMPLETED attempt is one where the accused does everything intended but the crime is not consummated (e.g. shoots and misses). An UNCOMPLETED (interrupted) attempt is one where the accused is stopped before completion — here the crucial line is between mere preparation (not punishable) and the commencement of execution (a punishable attempt) — Schoombie.
Voluntary withdrawal
VOLUNTARY WITHDRAWAL is a defence only in an UNCOMPLETED attempt — if the accused freely abandons the plan before crossing from preparation into execution. Once the attempt is complete (the accused has done all they set out to do), a change of heart is no defence.
Attempting the impossible
An attempt to commit a crime that is factually impossible (e.g. pickpocketing an empty pocket) is still punishable. Only where the intended conduct would not be a crime at all (a "putative crime") is there no attempt.
Exam trap: do not confuse withdrawal with abandonment after completion. Voluntary withdrawal excuses only the UNCOMPLETED attempt; after a completed attempt the crime is already made out.
Key Case — Attempt
R v Schoombie1945 AD 541Distinguishes completed and uncompleted attempts and the line between (non-punishable) preparation and the (punishable) commencement of execution.
Facts. The accused was charged in connection with an attempt to commit arson. The court had to decide when conduct crosses from non-punishable preparation into a punishable attempt.
Legal question. What distinguishes a punishable criminal attempt from mere (non-punishable) acts of preparation?
Judgment. The Appellate Division analysed attempt through the completed/uncompleted distinction and the line between preparation and commencement of execution.
Significance. The foundational South African authority on the crime of attempt and the preparation-versus-execution boundary that determines when liability for attempt arises.
Exam tip. Use Schoombie for the structure of attempt: completed vs uncompleted attempts, and the preparation/commencement-of-execution line. Voluntary withdrawal can be a defence only in an uncompleted attempt, before the crime is consummated.
Conspiracy
The Secret Script Room
Conspiracy: an agreement between two or more persons to commit a crime.
The statutory crime
Conspiracy is created by s 18(2)(a) of the Riotous Assemblies Act 17 of 1956: it is a crime to conspire with another to aid or procure the commission of, or to commit, any offence. The agreement itself creates liability.
Conspiracy (s 18(2)(a), Riotous Assemblies Act 17 of 1956) requires: (1) an agreement between two or more persons; (2) to commit (or aid/procure) a specific offence. The crime need not be carried out.
The Agreement
The agreement is the essence of conspiracy. Each conspirator need not know every detail — it is sufficient that there is a common design to commit the crime.
Exam trap: do not confuse conspiracy with common purpose. Common purpose requires participation in the completed crime (the conduct is imputed); conspiracy is a standalone inchoate crime that punishes the agreement itself, whether or not the crime follows.
Incitement
The Director's Balcony
Incitement: inspiring or encouraging another person to commit a crime.
The statutory crime
Incitement is created by s 18(2)(b) of the Riotous Assemblies Act 17 of 1956: it is a crime to incite, instigate, command or procure another to commit an offence. The inciter need not participate directly — the encouragement itself is criminal.
Incitement (s 18(2)(b), Riotous Assemblies Act 17 of 1956) requires: (1) inciting, instigating, commanding or procuring another; (2) to commit a specific offence — and, after the EFF case, a SERIOUS offence. The crime need not be committed.
The Key Element
The conduct must reach beyond merely informing another of an opportunity — it must seek to influence the other to commit the crime. The inciter intends that the crime be committed.
Exam trap: after the EFF case the offence reaches only the incitement of a SERIOUS offence; and the crime incited must be specific — vague encouragement to "do something bad" is insufficient.
Key Case — Incitement
Economic Freedom Fighters v Minister of Justice and Correctional Services2021 (1) SACR 387 (CC)Incitement under s 18(2)(b) is constitutional only insofar as it targets SERIOUS offences; the CC read in "serious" to save it from overbreadth (freedom of expression).
Facts. Julius Malema, leader of the EFF, was charged under section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 for inciting EFF supporters and others to occupy land they did not own, without lawful permission. The EFF challenged the constitutionality of the incitement offence as a violation of the right to freedom of expression.
Legal question. Is the crime of incitement in section 18(2)(b) of the Riotous Assemblies Act — which criminalises inciting any person to commit "any offence" — consistent with the right to freedom of expression in section 16 of the Constitution?
Judgment. The Constitutional Court declared section 18(2)(b) inconsistent with section 16(1) of the Constitution to the extent of its overbreadth, and cured the defect by reading in the word "serious" (so the crime reaches incitement to commit any "serious" offence). The declaration of invalidity was suspended for 24 months to allow Parliament to correct it.
Significance. The leading modern authority on the crime of incitement and its constitutional limits. It confirms that incitement remains a crime but narrows it to serious offences, balancing the offence against freedom of expression.
Exam tip. Use the EFF case for the inchoate crime of incitement and its constitutional limits. Remember the remedy: the court read in "serious" — inciting a trivial offence is no longer criminal, but inciting a serious offence remains punishable.
Distinction
Master Distinction Wall
Participation vs Inchoate Crimes — a critical exam distinction.
The Two Questions
Participation asks: who committed the crime? Inchoate crimes ask: what liability exists even before the crime is completed?
The Three Gateways
Exam trap: once the crime is completed, you charge the completed crime — not the inchoate form. Attempt "merges" into the completed offence.