Criminal Law A Introduction and Definitions National criminal law Criminal law is a branch of national public law, between

the state and its legal subjects. Criminal law defines certain forms of human conduct as crimes and provides for punishment of those persons with criminal capacity who, unlawfully and with a guilty mind, commit a crime. International Criminal Law In 2002, an International Criminal Court (ICC) came into operation. This court has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. South Africa is a state party to the Rome Statute; it must therefore comply with its obligations. In all cases heard by the ICC, the terms of the Rome Statute and other rules and principles of international law will take precedence over the domestic law of the state party in which the crime was committed. Crime This is defined as conduct which is prohibited by common or statute law, and is expressly or implicitly subject to punishment, remissible only by the courts. The conduct must be declared by the law to be a prosecutable crime in order for it to be criminal. Once the offender has been convicted, he cannot, by his own acts, avoid the punishment. The Function and Objects of Criminal Law Function Criminal law is a social mechanism used to coerce members of society, through the threat of punishment, to abstain from conduct that is harmful to the interests of society. Objects The object of criminal law is promote

individual independence; and the welfare of society and its members,

by establishing and maintaining peace and order and furthering fundamental human rights. Sources Criminal law in South Africa is based fundamentally on Roman-Dutch law. There are three main sources of South African criminal law: case law; the common law; and legislation.

The common law is often too narrow and static to keep pace with developments in a fastevolving society. Cyber crimes, for example, are not included in common law. Societys needs change. Since there is a closed list of common law crimes, legislation is the more relevant source of criminal law. The courts have the role of interpreting and applying the law through legislation, and of developing the common law. Criminal justice system Because a crime is considered a harm to society as a whole, criminals must be discovered and punished. Since punishment involves deprivation or the infliction of suffering, a mechanism is needed to check that any person who is accused of having contravened the criminal law has indeed do so, and therefore deserves the punishment. Punishment takes special and particular forms. Different institutions must exist at which the punishment may be effected. This is why there is a need for an effective criminal justice system, comprising three components:

1. Law enforcement: This involves monitoring the publics observance of the law and the enforcement of laws through (i) the use of force; (ii) investigation of crime; and (iii) the arrest and interrogation of suspected offenders. 2. Prosecution of offenders: This is a process involving various procedures for determining whether or not a person committed a crime, and the determination of the punishment to be inflicted for having done so. 3. Punishment of the convicted: Since punishment involves the deprivation of liberty or property, or the infliction of suffering, there must be fairness in handing down punishment. Only those who deserve punishment should suffer it. This is why the state must prove beyond any reasonable doubt that the accused is indeed the person who committed the crime. Theories of Punishment Punishment works through official sanctions aimed at interfering with the life, liberty or property of the offender. It is the authoritative infliction of suffering for an offence. Numerous theories have been developed in order to justify punishment. Generally they argue for punishment either because it is deservedthese are known as the retributive theories of punishmentor, in the case of the utilitarian theories of punishment, because it is socially beneficial. Section 12 of the Constitution states that everyone has the right to freedom and security, including the right not to be treated or punished in a cruel, inhuman or degrading way. As stated by Ackermann J in S v Dodo, the concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading. Theories of punishment can take either of two forms: absolute and relative. Absolute An absolute theory of punishment is retrospective in nature, looking only at the crime that has been committed. Punishment on this view is an end in itself.

One criticism of these theories is that they only look to the harm done and the past wrongdoing, without any regard to the future benefits for the offender or society. Absolute theories support the principle that everyone has a free will. They choose to do harm, they ought to be held culpable and blameworthy. Relative Relative theories are prospective in nature, with the emphasis on the object we wish to achieve by the punishment, be it prevention or deterrence or reformation. This type of punishment is only a means to a secondary end or purpose, which is different for each theory: On the preventative theory, the end is the prevention of crime; on the deterrent theory, deterring the individual from committing another crime; and, on the reformative theory, reformation of the criminal.

There are three main classifications of punishment theories: retributive; utilitarian; and a combination of retributive and utilitarian.

Retributive theories Retributive theories are based on the idea of retribution. If a person causes harm, harm should be done to that person in return. Punishment is justified because it is deserved. It is a reflection of societys condemnation to the crime; the offender owes his punishment to society. If there is no retribution, the view might form in society that the legal system does not care for societys condemnation, which could lead to people taking the law into their own hands.

Retributive theories are aimed at restoring the legal balance. Retribution rests on the principle of proportionality, in terms of which the retribution visited upon the wrongdoer must bear some relationship to the harm done to society. The lesser the crime, therefore, the smaller the debt owed to society. Retribution is not the same as revenge, which is the mere infliction of harm in return for harm suffered, without consideration for the nature or extent of that harm. Burchell discusses four retributive theories: Appeasement of society The idea here is that the punishment is inflicted in order to satisfy the righteous anger of the wronged person and of the community in general. This theory does, in fact, very closely resemble what it is generally understood by the term revenge. If the theory were to be founded on the demand for vengeance of the individual victim, it would become difficult to justify the infliction of punishment where the victim does not want vengeance and has forgiven the harm done to him. Vengeance, therefore, in the context of this theory, is not an individual matter but a public demand. It is based on the idea that, if the instinctive human demand for revenge is not satisfied, the public will lose respect for the law and begin to exact private revenge. Expiation or Atonement (apology) X, having harmed society, deserves on that account to be punished. Having suffered harm proportionate to that which he has inflicted, his debt to society is paid, and his crime is expiated or purged. The rationale for this theory is that society feels that a wrongdoer who has expiated his wrongs through punishment has paid his debt to society. For this reason, he is entitled to be accepted back into the community.

The theory implies that previous convictions should not lead to an increase in sentence, because those previous convictions have already been paid for. A bad record, however, is regarded as justifying a more severe sentence so as to reform, deter and even physically prevent a habitual criminal from relapse or recidivism. Denunciation In the case of denunciation theory, punishment is viewed as an expression of societys revulsion for the criminal and outrage at what he has done. It testifies also to the values and standards of society. Just deserts The theory of just deserts rests on the notion that, since a crime disturbs the moral order of society, a punishment is called for which restores that order. Punishment is necessary, therefore, to make good the harm done. Proportionality is inherent in this theory: The punishment must fit the crime. Laws should be put forward which are equal and fair. Only in these conditions will the person contravening the law gain an unjustified advantage over others, and therefore justifiably be punished. Utilitarian theories Utilitarian theories of punishment assert that it has a social benefit for society. Punishment is justified by the advantage that it brings to the social order. Burchell cites four utilitarian theories: Prevention or incapacitation The idea behind this theory of punishment is to make it impossible for the wrongdoer to commit further crimes. Imprisonment, for example, achieves this by removing the criminal from society for the term of the sentence.

Most preventative measures are temporary or only partially effective, however. The prisoner must be released once the sentence is served, even though it may be expected that he will return to a life of crime. Suspension or confiscation of a drivers licence, for example, is not always permanent; it only prevents the person, for a while, from lawfully driving a car. The success of the punishment depends on the ability of the court to establish beforehand which accused are so dangerous they should be permanently or temporarily removed from society. This is often very difficult. There are other guidelines for ensuring that prevention is successful: Prevention is rationally justifiable only on the principle that the offender is likely to commit further crimes unless restrained. The likelihood of further crimes should therefore be investigated before punishment motivated by the prevention theory is meted out. Prevention must be balanced by considerations of fairness consistency and the moral blameworthiness of the offender. There must be a balance between the protection of society and the offenders welfare. Prevention is a negative and limited aim of punishment. A penalty should seek more positively to reform the offender and to deter others from crime. Deterrence Deterrence, as a theory of punishment, is based on the idea that punishment has the effect of dissuading citizens from committing crimes and thus of reducing the crime rate and benefiting society. This flows from the logic that, since punishment involves pain and suffering, rational people will avoid any conduct that will expose them to punishment. Deterrence may be either individual or general. Individual Deterrence: The object of individual deterrence is to teach the offender a lesson so that he will be deterred from repeating his offence.

The validity of this theory may therefore be weakened every time a convicted person commits another crime, as the previous punishment has obviously not deterred him. Statistics show that ninety per cent of offenders continue to commit crimes after being released from prison. This theory is not very effective. First time offenders ought rather to be treated with leniency than suffer a severe (and deterrent) punishment. General Deterrence: Object the emphasis is made to the effect of punishment on the society in general, therefore, the whole community is deterred form committing crimes. Effect the doctrine of legality requires that every description of a punishment will follow the commission of the crime. Therefore, the general notification of the consequences of criminal conduct will deter persons from contravening the law. People who, in spite of this threat, commit crimes should suffer punishment as an example to others. Success success of this theory depends on how probable it is that an offender will be caught, convicted and serve out his sentence. If the people responsible (police, courts, prison wardens) fail to do this, the deterrent theory cannot operate effectively. Limitations - * an understaffed police force * prosecutes lacking the required skills * possible corruption * bad administration * so few offenders brought to justice. o proven untrue. o The idea that the average person is deterred from crime by the punishment imposed on others can never be proved as one would have to know how many people would commit the crime if there was no sanction. Thus deterrence rests wholly on faith. Criticisms against the deterrence theory: The theory is based on the idea that a person is rational and will always

weigh up pros and cons of a prospective action before he decides to act. This has been

The requirement of culpability (fault) for criminal liability, cannot be

readily explained by this theory it is possible to deter people from committing crimes even by punishing those who break the rules of criminal law without any culpability (e.g. an insane person). o If one applies this theory, it is tolerable to impose a punishment on X which is not proportional to the harm he inflicted when he committed the crime, but which is higher than a proportional sentence. Reinforcement This is another form of the deterrence theory in the sense that the consistent

punishment of criminals creates and reinforces in every citizen a respect for the law and inhibits contravention of it. Punishment is seen as an educational medium: because punishment expresses societys disapproval of an act, this strengthens the publics moral code and creates conscious and unconscious inhibitions against committing the crime. Reformative or Rehabilitation This theory is aimed at reforming the offender into a law-abiding citizen. This is achieved through rehabilitative programmes that are administered while

the offender is incarcerated in prison. Alternatively, the offender may be requested to complete some reformative programme as a condition for the suspension of imprisonment. The purpose of punishment under this theory is to readjust the criminal to the

demands of society by individualising the penalty: by fitting the punishment to his personality rather than by letting the punishment fit the crime. Therefore, external factors are taken into account, such as the offenders personality defects and psychological factors stemming form his background. The roles of prisons have changed to become more rehabilitative. There is now also a wider range of punishments under this theory, including suspended imprisonment on condition of rehabilitation, community service, house arrest and period imprisonment. Rehabilitation has been seen as a possible solution to recidivism (habitual Criticisms to the rehabilitation theory:

criminal) in SA.

To detain an offender until he has been reformed may involve a

punishment totally out of proportion to the social harm he has caused and to his own blameworthiness. This is because it is difficult to calculate how long it will take to reform a person, if ever. o o Reformative measures must not ignore the other purposes of punishment The courts have to have sufficient information regarding the offenders general deterrence must also be borne in mind. personality and the treatment to which he is likely to respond. Combination of Theories South African courts apply a combination of the above theories, but the nature of how the S v Zinn (Appellate Division): this case laid down the 3 consideration (the triad) that the o AD. Zinn owned a furniture shop with Smith, an illiterate man who supervised labour and machinery. Z was responsible for the companys financial matters. Z borrowed money from other companies and produced false statements and invoices using various companies letterheads. Z also stole furniture from the shop and sold it for his own benefit. Application Z was 58 years old and was suffering from bronchiectasis. His condition was chronic and would not improve unless he received surgical treatment. The AD now had to impose a sentence which was suitable to the circumstances: the triad. The triad consist of: (i) the crime; (ii) the offender: and (iii) the interests of society. The crime there can be no doubt that in this case the large amounts involved and the persistent falsification of balance sheets for so long a period and the incurring of vast debts knowing that the company was insolvent call for a very heavy sentence. The offender the appellants age was looked at, and it was said that a vey long period of imprisonment, with regard to his physical condition, would probably not offer him the
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theories are combined depends on the case. courts must assess. Facts Z was charged in the Cape HC of fraud, theft and a contravention of legislation. He pled guilty and was sentenced to 15 years. He appealed the sentence in the

opportunity to reform and begin life anew. It has also been submitted that the purpose of punishment, in cases like the present, should not be to destroy the offender completely. However, it was decided that generally old age is not a ground for leniency. The court considered his age along with the fact that he deliberately committed fraud for a period of 8 years, involving large sums of money, and held that these weakened his opportunity to reform. Furthermore, with regards to his health, imprisonment will be considerably more disagreeable, but it was pointed out that the appellant will be under constant medical supervision. The interests of society the court held that they demand a man like the appellant to be put away for a long time in order to protect society from him, as well as to punish crimes (retribution) committed over an extended period and as a warning to businessmen who might feel inclined to abuse the industry(prevention and deterrence). Conclusion the sentence was reduced to 12 years, with regard to the appellants age and illness. In S v Makwanyane the court looked at various aspects relating to punishment and

whether they justify the death penalty. Counsel for the accused argued the death penalty was cruel, inhuman and degrading in that it infringes a persons constitutional rights to dignity and life. Moreover, it was argued to be arbitrary in that it cannot be corrected in case of error. Chaskalson Ps judgment: o The death penalty as cruel, inhuman and degrading punishment the omission of declaring capital punishment in the Interim Constitution was not accidental, but was a deliberate choice by the legislature to leave the final decision to the Constitutional Court. He declared it inhuman, degrading and cruel, moreover, it was arbitrary and unequal in its operation and constituted an impairment of human dignity. o The limitations clause Chaskalson considered whether the infringement of the right to life could be justified by the limitations clause, stating that in order to pass the test, the infringement must be reasonable, justifiable in an open and democratic society based on equality and freedom, necessary and not cancel out the essential content of the right to life. o Chaskalson then looked at theories of punishment with regards to the death penalty:

Deterrence theory the greatest deterrent to crime is the likelihood that

offenders will be apprehended, convicted and punished. Chaskalson said there was no proof that the death penalty is a greater deterrent than life sentence. Prevention theory Chaskalson held that life imprisonment serves well as Retribution it was held that retribution should receive a less weight than a preventive punishment. deterrence, and even though it is not the main reason for punishment, it too can effectively be carried out by the imposition of life imprisonment. o In order to reach his conclusion, Chaskalson then balanced the theories of punishment against the alternative punishments available and the factors which make the death penalty cruel, inhuman and degrading: An innocent person may protect his right to life by killing an assailant where there is an immediate threat and no other readily available alternative. The death penalty, however, involves killing by the State where there is no emergency and careful consideration of alternative punishment is available. A prisoner does not lose all his rights on entering prison. o Conclusion the death penalty was found to infringe the constitutional right prohibiting cruel, inhuman and degrading punishment, as well as the right to life. fraud. The appellant was charging high rentals and in order to cover up his offence of high charging, he thought up a fraudulent scheme. In the trial court, the appellants family doctor testified that the appellant suffered from peripheral neuritis and that a prison sentence would have an aggravating effect on his health. S v De Kock: South African courts have placed emphasis on reformation of criminals. Some authors suggest emphasis should shift back to retribution. A very low percentage of crimes are reported and few of these are brought to trial and convicted. Values of the Criminal Law Legality
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S v Rabie: this was an appeal against a sentence compelling the appellant to go to

prison for 12 months as well as paying a fine of R5 000. The appellant was convicted of

According to the principle of legality, punishment may only be inflicted for contraventions of designated crime created by a law that was in force before the contravention. There must be a previously made law; The State cannot inflict punishment without contravention of this law; People must know in certain terms what they can and cannot do from the laws which

create crimes and provide punishment for such crimes. The sources of the principle of legality are the Constitutional themes of: Separation of powers where judges do not make laws but simply apply them; Democracy and fairness; Certainty and fair notice.

The Rules of Legality The principle of legality imposes certain restrictions on the legislature and the judiciary. The legislature is required to create crimes in a particular form and language and the courts are required to abstain from taking over the lawmaking function of the legislature and to interpret penal laws in a particular manner. The effects of the principle of legality are as follows: a) Nullum crimen sine lege = no crime without law This theme means that punishment may only be inflicted for the contravention of a commonlaw crime or a properly enacted statutory offence. i. o Common-law crimes: The principle of legality requires that there is a closed list of commonlaw crimes and that no new crimes can be added to the list. Thus, there can be no conviction of, or punishment for, an act not previously declared to be a crime at common law. The courts have no power to and are precluded from inventing or creating new common-law crimes. o ii. The courts may adapt existing crimes to meet contemporary Statutory crimes: requirements. But there is a fine line between adaptation and extension.

The principle of legality requires that only the legislature possess the

power to create new crimes. Therefore, the only source of new crimes in modern law is by a legislative Act. o This theme means that in order for someone to be lawfully punished, they must have contravened the provisions of an existing stature that is in force and has expressly penalised the contravention. o In terms of the Constitution, a statute may be declared invalid if it is contrary to the provisions of the BoR therefore, if and Act is declared invalid, so are the provisions it contains and the crimes it creates. o The doctrine of legality requires that the legislature should formally pronounce that disobedience to its prohibition is a crime that is liable to punishment. This announcement is incorporated in the words shall be an offence. o o Statutory offences should be created in express terms. If the legislature S v Francis: the accused was an inmate in a rehabilitation centre and was intends to criminalise conduct it must say so in express words. charged with absconding from the centre. He was charged with contravening a certain regulation promulgated in terms of a 1971 Act which dealt with rehabilitation centres. The regulation made it clear that the accuseds conduct constituted an offence. However, the legislation and the regulation were appealed and replaced by a ne Act, which did not contain any provision creating a criminal conduct. Issue the court had to decide whether the accuseds conduct constituted a crime. Ackerman: In R v Forlee the accused was charged with the contravention of a statutory provision prohibiting trade in opium. The prohibition had been taken over from an older Act which contained a penal provision for a contravention thereof. In the new Act, the criminal norm was omitted. The court held: should be imposed at all. The simple principle applies in RDL and that as the Act in question was expressly an offence, it is punishable under our law. Ackerman quoted Snyman in that:
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If the omission were intentional, then the legislature

considered either that the common law provided a penalty or that no penalty

If the legislature accidentally omits the criminal norm, it must then correct the

error, and not rely on the judiciary to speculate on what the legislature wished to do, thus leaving the court to create a criminal norm. Ackerman held: The criticisms of the Forlee judgement were justified, however, not necessary Held that the public interest did not require that the contravention be regarded to take it further as the principles laid down in R v Forlee are still the current law. as a crime and that the accused was consequently wrongly charged and convicted of an offence of absconding from a rehabilitation centre. b) Nullum crimen sine poena = no crime without punishment Punishment is an integral part of the concept of a crime. Without the liability to punishment there would be no distinction between penal and non-penal laws. Therefore, where a law rendering an act criminal does not affix punishment to that conduct, there exists no crime in law. when a crime is created. R v Carto: to render any act criminal in our law, there must be some punishment affixed to the commission of the act and where no law exists affixing such punishment there is no crime in law. In the present case, if the prohibition order under which the accused was charged is to be treated as a regulation, the prescribed formalities for its promulgation were not observed. If it is not to be regarded as a regulation, then there is clearly no penalty attaching to a breach of its provisions. Therefore, the prohibition order, for one contravention of which the accused was convicted was valuable merely as a notice to the citizens that the Council had determined to prohibit reservoir water being used on gardens, that there is nothing in the Act or regulations consisting the breach of the order an offence and that no penalty attached to the breach, and that even if the prohibition order did constitute an offence for which a penalty was provided, the order was in that event not promulgated as required by law.
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R v Zinn: there was no punishment

prescribed for a crime, which departed from the general practice of placing a punishment

Held that the prohibition still stands, but there will not be a crime without a punishment. c) Nulla poena sine lege = no punishment without law Punishment for a crime must be prescribed by law either statue or common law. Common-law crimes: o o The principle of legality requires that the punishment should e prescribed in According to SAL, the judge must have a discretion in sentencing an offender,

advance by the law- thus preventing arbitrary, secret or cruel punishment. an must take into account a variety of factors relating to his own and societys welfare and they must be free even to impose no punishment at all of that is desirable. o Statutory offences: The maximum punishment that may be imposed is

usually prescribed in the statute, a practice that at least ensures that the likely punishment for a contravention is known in advance. d) The definitions of the common-law and statutory crimes should be reasonable precise and settled (known) The principle of legality requires that there has to be no room for uncertainty, and that Common-law crimes: o The definition of these crimes find their authoritative expression in the

the definitions of crimes should be stated in a formal authoritative way.

decisions of the courts and books of authority. Since judges and scholars may differ in their interpretation of these sources, there always exists a measure of uncertainty as to the exact ambit or scope of a common-law crime. o The judges have to walk a tenuous line between interpretation and innovation, seeking to adapt the law to modern requirements while seeking to avoid allowing legitimate interpretation to pass by imperceptible shades into so-called illegitimate extensions. o Statutory offences: The legislature ought to described the extent and limits of the prohibitions.

e) Penal statutes should be strictly construed Strict construction stops analogical extension of the language of penal provisions. On

the other hand, a strict construction is not adopted where to do so would be to defeat the intention of the legislature. If statues are vague, the court will opt for an interpretation which benefits the accused. Common-law and statutory crimes: the scope of the provision should not lightly be

extended beyond the plain meaning of its language. The court may not extend the meaning of words so as to cover crimes of an equal atrocity or of a familiar character. f) Nullum crimen, nulla poena sine praevia lege poenali = laws and punishments do not operate retrospectively Prospectivity of penal laws: o The principle of legality prescribes that criminal laws must have a prospective

operation, meaning that they should be made to commence at a date and time after their enactment. Retrospectivity: o o o There is a prohibition on ex post facto penal laws i.e. there can be no The purpose was to prevent government abuse of power, and promote The courts have no power to create new crimes: Judicial decisions concerning conduct are always made ex post facto

punishment retrospectively. fairness.

and thus inevitably operate with retrospective effect. Therefore, the invention by the courts of a crime that was not previously known to the legal system, constitutes an instance of retrospective law-making. o The constitutional doctrine of the separation of powers prohibits Penal statutes should not operate retrospectively: judges from making law and thus from creating new crimes.

There is a presumption against retrospectivity, which can only be

rebutted by express wording or necessary intendement. g) The law should be accessible When a citizen is unable to find the law or to understand it, he is unable to challenge or dispute the claims of oppressive officials that they had committed a crime. A person cannot be regarded as blameworthy and thus liable to punishment if he does

not know that he is committing an offence, therefore it is vital that the system of criminal justice must properly inform citizens of the prohibitions of law to prevent this ignorance. Common-law crimes: o This is linked with the nullum crimen doctrine in the sense that the definitions

of the common-law crimes should be settled and fixed and that the list of commonlaw crimes is closed. o Statutory offences: The nullum crimen principle requires that all penal statues should be

promulgated before they can acquire the force of the law, thus ensuring that this type of legislation is accessible to the public. o In SAL, although ignorance does not excuse liability, there are exceptional circumstances: provision. The principle of legality in the Constitution S35(l) and (n) of the BoR states that everyone who is arrested for allegedly committing The Constitution and the Universal Declaration of Human Rights emphasise that an R v Carto the municipal provision was not properly promulgated and so the accused should not have been convicted and sentenced in terms of the

an offence has the right to nullum crimen sine lege (legality). important aspect of the principle of legality is that prohibits penal laws from operating retroactively.

Legality does not prohibit or declare invalid legislation which is too vague. Moreover, a o In S v Friedman, Cloete J rejected the argument that the CL crime of fraud was

definition of criminal conduct which is too vague would infringe the right to a fair trial. too wide in its definition of potential prejudice. The judge held that although the rime was broadly defined, it was not too difficult of impossible to apply. Models of Criminal Justice There are two basic models of a criminal justice system: the crime control model and the due process model. Crime Control Model This process model is effectively and efficiently organised to prevent crime. It is based on the proposition that the repression of criminal conduct is the most important

function to be performed by the criminal process, because the failure of law enforcement to bring criminal conduct under tight control leads to the breakdown of public and legal order. The criminal process must be seen as a positive grantor of social freedom. The police must enjoy extensive powers of arrest, to be exercised upon suspicion that the The trial should be quick and short in order for the system to try and punish the most

arrestee has (or is about to) commit a crime. people it can. The accused may be asked to prove his own innocence with strict punishment to warn

others. Due Process Model Innocent persons should not be convicted of a crime that they have not committed and that the criminal process should give due recognition and protection to the basic human and civil rights of an accused. Every accused is presumed innocent until proven otherwise, and the onus is on the State

to prove, beyond a reasonable doubt, that the accused is guilty.

Because the onus is on the prosecution, the accused will not be forced to give This model fits in very well with South Africas constitutional dispensation.

incriminating evidence.

A Balance Between the Two The crime control element: the police have the powers to arrest, but these powers are In the instance of bail effective crime control demands that suspects should be held in

limited by the surrounding circumstances. detention so as to ensure that they stand trial. Due process of law values require that citizens should not be deprived of their personal liberty except after proper trial and conviction. o Bail is a compromise device that gives partial expression to the demands of each set of values while not according exactly with either of them.

2. Overview

General Principles of Criminal Liability

Actus non facit reum nisi mens sit rea = an act is not unlawful unless there is a guilty mind. For criminal liability to result, the State must prove, beyond reasonable doubt, that the accused has committed: i. ii. iii. unlawful voluntary conduct (actus reus), and that this conduct was criminal capacity and fault (mens rea). accompanied by

It is then up to the accused to bring a defence that will cast a reasonable doubt. Requirements for liability: step 1-5 a) Legality the conduct forming the basis of a charge must be recognised in our law as a crime. A court may not convict a person and punish him simply because they are of the opinion that the conduct is immoral. b) Act or conduct once a certain conduct has been defined as a crime, the court must determine whether there was conduct on the part of the accused. Conduct includes acts or omissions, and mere thoughts or even decisions are not punishable. The conduct must be voluntary, meaning that the accused must have been capable of subjecting his muscular movements to his will or intellect. An omission, which is a failure to perfume active conduct, can lead to criminal liability only if the law imposed a duty on the accused to act positively and he failed to do so. c) Conduct must comply with the definitional elements of crime this means that the conduct should comply with the description of the type of conduct prohibited by the law and the circumstances in which it must take place in order to constitute a crime. d) Unlawfulness unlawful means contrary to law, and not just the rule contained in the definitional elements of the crime, but the totality of the rules of law, and this includes rules which in certain circumstances allow a person to commit an act which is contrary to a legal prohibition or a norm.

e)

Culpability this is described as mens rea. This means that there must be

grounds upon which the accused may, in the eyes of the law, be personally blamed for his unlawful conduct. There are two sub-requirements of this element: Criminal capacity; and Intention or negligence.

3.

General Principles of Unlawful Conduct

A: Conduct Conduct is an act or commission; or an omission, which is a failure to act when there is a legal duty to do so. An act forms both the basis of liability, as well as limits the scope of liability. It must be by a human being It is a CL principle that only humans can commit a crime. If a person uses an animal to commit a crime, the owner or handler is liable. CL did not recognised companies as being liable for criminal conduct, but this has

changed. E.g. contravention of health provisions constitutes a crime. Voluntary/Involuntary conduct Voluntary: The accused must have been capable of making a decision about his conduct and to execute his discretion. Therefore, the accused must be capable of preventing the prohibited act or result if he It is not required that the accused make a rational or well considered-decision. There is a difference between intention and voluntary conduct, i.e. the taking of

applies his mind to the matter.

something is different from the intention to keep it. Involuntary: If the conduct cannot be controlled by the will, it is involuntary. Therefore the actor is not the author or creator of the act or omission; it means that it is not the accused who has acted, but rather that the event is something which happened to the accused. Automatism this is an automatic response when a person cannot use their mind o A-G for Northern Ireland v Bratty : automatism is any act which is done by the muscles without any control of the mind, such as spasm, reflex, convulsion or an act

to control their body and actions.

by a person who is asleep or unconscious (for any reason). Automatism does not include not being able to remember. o Insane automatism (insanity/mental illness) is brought about by mental illness, same as mental incapacity. The onus is on the accused to prove on a balance of probabilities that he suffered from mental illness. o Sane automatism is when there is no mental illness. The State bears the onus on proving conduct was voluntary. o Epilepsy: R v Victor

The accused was charged with negligent or reckless driving. Whilst driving a car in a public road he had an epileptic seizure, lost control of the car and collided with a pedestrian and another car. The magistrate convicted him and the matter was sent on appeal. The accuseds defence was that he was not responsible for his conduct because he was at the time a victim of an epileptic seizure, which he suffered from occasionally. He had suffered from attacks since the age of 14 or 15 and generally had a warning feeling five minutes before an attack. On the morning of the accident, he had a warning feeling, followed by an attack, which lasted about 10-15 minutes. He then said that he had never before had two attacks on the same day, so he thought it was safe to take out the car. Held the conviction should be upheld on the view that it appeared from the appellants own case that he drove recklessly because his physical condition made it, to his knowledge, impossible for him to drive without probable danger to others. Appellant raised a special defence that he was not criminally responsible for his acts and omissions because they were involuntary. Held there is noting written that indicates that this defence can be invoked where the involuntary convulsion is something the accused had reason to anticipate when he set in motion a machine, of high potential danger to others, which it was his duty at all times to keep in control. Therefore, it seems that he

must be criminally responsible, as he is civilly responsible, for the failure to keep it under proper control. Criticism of the judgement at the time of the accident, the appellant had no control over his actions, so did not fit the charge. R v Schoonwinkel: The driver of a car was charged with culpable homicide as the result of a collision with another car in which a passenger was killed. The defence showed that at the time the accused was suffering from an epileptic fit and his mind was a blank. The nature of the epilepsy from which the accused was suffering was such that he would normally not have realised the dangerous consequences associated with him driving a car, having only had two previous minor attacks, the last of which was a considerable period before the collision. Immediately before the collision, the mind of the accused became quite blank because the accused had a minor epileptic fit. The doctor said that a patient would not realise the potential dangers inherent in his being subject to this form of attack. The accused said he did not remember what happened a few hundred paces from the collision, but remembered that just after the accident he got out of his car and spoke to one or two people and refused to help the deceased. The court looked at the facts and decision in Victor and held that the facts were very different. In the current case the number of fits suffered by the accused was considerably less than that of Victor, and the type of fit was completely different as it had no warning feeling. Held the court was not satisfied that the accused could or should have reasonably foreseen the danger of driving on a public road, even though he knew he was subject to fits. Therefore the accused was not liable.

R v Mkize:

The accused had been charged with the murder of his sister by stabbing her with a knife he had been cutting meat with. The motive for the stabbing was inexplicable, and the evidence showed that this behaviour was foreign to the accused, though the witnesses had mentioned cases of forgetfulness on his part. The accuseds evidence showed that he suffered from amnesia at the time of the stabbing, arising from an epileptic fit. Epilepsy is a disease of the brain which disturbs the consciousness and may take one of three forms: grand mal, petit mal, and epileptic equivalent. Grand mal the common form of fit, where the person falls and is completely unconscious with convulsions for a while. Petit mal a momentary loss of consciousness. Epileptic equivalent an attack where the ordinary fit is replaced by a period of confusions. May also be characterised as an unconscious state characterised by the absence of judgement, will, purpose and reason. There may be muscular activity and if a person has a knife in his hand when the attack commences, he may injure bystanders. When Modesta was injured, the accused did not have an attack of grand mal, but one of a petit mal or epileptic equivalent. The doctor said that the accused gave a coherent and full account of what had occurred and ran away after the incident. The court held that when applying the common law, it appears that a person who is charged with murder or culpable homicide must be acquitted if at the time of the homicide he: was asleep (R v Nbete; R v Dhlamini); was suffering from syncope/fainting (Rex v Du Plessis); was in a hypnotic state; was suffering form an epileptic fit (R v Schoonwinkel). The court held that there are four factors for criminal liability: ) a voluntary act or omission; ) unlawfulness of that act; ) a legally blameworthy condition of mind (mens rea) at the time of the act; ) criminal capacity. Held muscular activity during unconsciousness cannot be said to be a voluntary act, which is the fundamental requisite for criminal liability.
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The danger of a man subject to fits of unconsciousness lies more in the circumstances he finds himself in when the attack occurs, than in any viciousness inherent in himself. Held the accused is not guilty. o S v Johnson Intoxication:

The 18 year old accused was taken into custody on a charge of being drunk in a public place and locked in a cell with the deceased, an old man, who was in a deep sleep. The accused killed the deceased by striking him on the head with a bucket. The trial court found that the accused had drunk 9 glasses of brandy and was so drunk he was not conscious of what he was doing, but nevertheless he was convicted of culpable homicide. A fundamental requirement for criminal liability is a voluntary act or omission, in the sense that the perpetrator had the ability to take a decision in regard to his act or omission. Muscular activity during unconsciousness, whatever the cause of the unconsciousness, can never have a voluntary act as result. In R v Dlhamini the accused who was still half asleep after a nightmare, and who stabbed another to death with a knife, was found not guilty of murder or culpable homicide, because he was acting without motive or intent, and he was acting in a mechanical way to a dream picture which occupied his mind. In R v Mkize the accused during an epileptic fit inflicted a mortal wound on his sister with a knife. He was not found guilty because he was unconscious at the critical moment and did not act voluntarily. Held the trial court held that the accused did not act voluntarily, as a result of the severe intoxication. However, he was declared guilty on grounds of policy , and that the fundamental requirement of voluntariness does not apply to selfinduced intoxication, except where the intoxication causes a type of insanity. S v Chretien

This is the leading case on the scope of the defence of intoxication under the CL.

Held: if someone is so dead drunk that he lies performing involuntary muscle movements with his arm or foot and someone should be hit and injured by such involuntary movements, there would in any event be no question of an act, in the same way as a sleepwalkers movements cannot constitute an act. In criminal law an act is only an act when it is controlled by the will. In the case of the involuntary muscular movements of a person who is dead drunk there is no trace of control and it is no room for fault. There is similarly no question of criminal capacity. Therefore, the policy judgement that was put forward in Johnson was rejected and over turned. o two types: the forcer is. Relative force vis compulsiva. This is where a person does have the ability to control their own will, but are threatened with the prospect of suffering some harm or wring if they do not choose to commit the crime. compulsion. The first accused approached the deceased and asked for a cigarette and money. The deceased replied that he had no money and accused 1 stabbed him in the chest and ordered accused 2 to bind him up. Goliath, accused 2, objected and was then threatened by accused 1, that unless he did as he pleased, he would stab him to death. Goliath feared for his life and so bound the deceased and took his shoes off, as instructed by accused 1. Both accused were charged with murder, Goliath as an accomplice. The trial court found accused 1 guilty of murder and sentenced him to death. S v Goliath: This is the leading case on killing under Absolute force vis absoluta. E.g. if someone puts a knife in your hand and forces the knife through a 3rd person, then you are not liable, but Absolute Force: This is when superior force is exerted over the body of

someone, forcing them to do something they would not ordinarily do. There are

Goliath was acquitted on the ground that he had acted under accused 1s compulsion. B: Omission Omissions are punishable only if there is a legal duty upon someone to perform a certain This legal duty is usually determined by the boni mores of society. A legal duty most not

type of active conduct, and they fail to do so. be confused with a moral duty. Issues of a legal duty also brings in the issue of lawfulness. o o In SA, there is no general duty to intervene because our system does not require Minister van Polisie v Ewels

someone to act positively. The SA system supports individual autonomy. The plaintiff had been assaulted by a police sergeant, who was not on duty, in a police station under the control of the police and in the presence of several other members of the police, who were on duty. The central issue was whether the policemen who stood by and did not come to the rescue of the plaintiff were under a legal duty to intervene. Held there is no general duty on a person to prevent harm to anther, even if such person could easily prevent such harm, and even if one could expect, on purely moral grounds, that such person act positively to prevent damage. However, in certain circumstances there is a legal duty on a person to prevent harm to another. If he fails to comply with that duty, there is an unlawful omission which can give rise to claim for damages. In the present case, dealing with a group of policemen doing duty in a police station, a building over which the police exercise control, and to which the ordinary citizen can an must lodge a complaint. Section 5 of the Police Act states that one of the activities of the Police is the prevention of crime. When all the circumstances are considered, it was held that the duty of the policemen to assist the plaintiff, was a legal duty, and that, because it was an omission which took place in the course of duty of the policemen, the defendant was liable. A legal duty may exist where:
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1. tax return) 2. 3. or a potentially dangerous animal) S v Fernandez:

A statute or the CL places a duty (e.g. filling out a Prior conduct creates a potentially dangerous Control of a potentially dangerous thing (e.g. a car

situation (e.g. light a fire in the bush but fail to extinguish it)

The accused had been charged with and convicted of culpable homicide. He had a baboon in a cage which had escaped one morning. In order to repair the cage, the accused coerced the animal back into the cage with a revolver and started repairing it. The animal got out again and snatched a baby from a pram, bit it and then threw the baby on the ground. Held the baboon was in the custody and control of the appellant and that it was his duty to see that the animal was not permitted to remain outside its cage. It was further held that the accused had taken no steps whatsoever to see that the animal did not get out of its cage while he was repairing it and that he ought to have foreseen the possibility of the baboon attacking someone. 4. parties (e.g. a lifesaver, parents) 5. duty to act (e.g. a policeman) Minister van Polisie v Ewels Person occupies a certain office which imposes a Special or protective relationship exists between the

An omission is regarded as unlawful conduct when the circumstances of the case are such that the omission not only occasions moral indignation but where the legal convictions of the community require that the omission be regarded as unlawful and that the loss suffered be compensated by the person who failed to act positively. When determining unlawfulness, one is not concerned with negligence of the bonus paterfamilias, but with the question whether, all facts considered, there was a legal duty to act reasonably. The plaintiff was assaulted in a police station under the control of the police and in the sight of a number of policemen, for whom it was possible to prevent or stop the attack.

Minister van Polisie v Skosana

In this civil claim the court had to consider the general principles governing causation by an omission. T was heavily intoxicated when he drove his car off the road. The injured passengers were taken to the hospital while T was taken in a police van to the charge office where he was examined by the district surgeon. He performed a clinical examination and took a blood sample. At that stage T had only complained of a pain in the chest, but there was no sign of internal injury. The following morning T complained to constables D and M of severe pain over the abdomen. Two hours later he was taken the district surgeon, who wrote a note to the hospital and the constables were to arrange for his being taken there. Another two hours passed before the ambulance came. At the hospital he was found to be in a very bad condition. An operation was performed, but in vain as his condition got worse and he had a ruptured bowel and died. The court looked at the factual question whether the omissions of D and M were a cause of Ts death. The plaintiff had to prove, on a balance of probabilities (delict case) that, but for the negligent acts or omissions of the constables, T would not have died. Viljoen AJA looked at the judgment in S v Van As, where it was stated that the inquiry falls into two parts; firstly what a reasonable person would have done under the circumstances and, secondly, whether, if the person concerned had so acted, he would have prevented the result. The court had to calculate the time the operation would have commenced but for the delays for which M and D were accountable, and then to determine what Ts chances of survival would probably have been at that stage. Corbett JA held that if the operation had been performed five hours earlier than it was, the probabilities are that the result would have been different and that the deceased would have survived. Minister of Law and Order v Kadir

This startling judgement declares that policemen are not under a legal duty to assist a person who has been severely injured in a car accident, by recording the ID of the driver of the car who may well have been instrumental in causing the accident in which the injuries were sustained.

The plaintiff had been seriously injured in a car accident when he lost control of his vehicle in swerving to avoid a bundle of clothing that had fallen from a car in front of him. Two policemen arrived and conducted an investigation. A witness informed the police of the circumstances in which the accident had occurred and referred to the danger to other road users constituted by the vehicle from which the clothing had fallen. The police did not record the ID of the driver or the registration number of his car. If the police had taken down the drivers details he would have been identified and a subsequent claim for compensation could have been brought by the plaintiff. The plaintiff then sued the Minister of Law and Order, alleging that he was vicariously liable for the failure of his policemen to record the relevant information and that this conduct had caused the plaintiff loss. The trial court held that in terms of the Police Act, and the legal convictions of the community referred to in Ewels, the police were under a legal duty to record the information in question. It was stated, however, that the Police Act, on its own, did not create a legal duty to act. On appeal, the AD reversed the decision of the trial court, holding that neither the Act nor the legal convictions of the community demanded a legal duty to record the information. Held it was not sufficient to base a legal duty to act on the self-imposed duties which the police are accustomed to perform in connection with road accidents. The community would not regard the omission of the police in Kadir with the same depth of popular disapproval as the omission in Ewels. Held the police force is first and foremost an agency employed by the State for the maintenance of law and order and the prevention, detection and investigation of crime with a view to bring criminals to justice. Therefore, a civil litigant does not have the right to demand a police investigation for the sole purpose of providing him with evidence. Although in the course of their function in investigating crime the police might collect information useful to a civil litigant, the litigant cannot demand the collection of such information. The AD pointed out that the plaintiff was unable, because of his injuries, to identify the offending driver himself and that a reasonable person in the position of the policemen

would have foreseen loss to the plaintiff as a result of the failure to conduct a proper investigation. Challenges to the decision: a) The underlying decision in Ewels is not that the Police Act imposes any legal duties on the police, but rather that the functions of the police as set out in the Act disclose a broad protective relationship between police and the individual. This protective relationship is no less applicable to a person who, incapacitated through no fault of his own, relies upon a policeman, who probably has more skill and experience in recording relevant information regarding an accident than he does, than it is to an individual who is being attacked and who relies on the police to protect him. b) The distinction drawn by the AD between investigations of criminal matters and recording of material for the purpose of civil litigation is unworkable and undesirable. All crimes against person and property are also delicts and the union of both civil and criminal remedies is a common feature of legal practice. c) If the person who assaulted Ewels had been an ordinary citizen, the court accepted that a legal duty would still have rested on the policemen to intervene and attempt to prevent the assault. If the identity of the person committing the assault had been unknown, surely the police, who stood by and did noting, would have been under a duty to record his identity, even though the person assaulted may have wished to pursue a civil claim. 6. Duty to warn R v Russell

The accused was assisting M, the crane operator who was in charge of loading pipes onto a lorry from a crane fitted on the back of the lorry. Overhead was an electric wire. Whilst M and his assistants, including the deceased, were not present, the shunter, in accordance with his duty to warn all the workmen present, had informed the accused that the current was about to be switched on and that he would be advised when it was switched off and they could proceed with the loading. The accused omitted to inform M on his return and the loading continued. The top of the crane touched the wire and the deceased was electrocuted and died.

Held the accused had, by manner of his acceptance of the warning in Ms absence, created a potentially dangerous situation and that thereafter there was a duty on him to pass on the warning to M and to his co-employees who were engaged on the same project, and who might reasonably be unaware of the danger; and that his failure to do so constituted negligence which had caused the death of the deceased. The accused should have reasonably foreseen that someone might be injured or killed if the loading proceeded whilst the current was on and, in the circumstances, should have guarded against such danger by warning M. The accused was guilty of culpable homicide. 7. 8. Legal convictions of society: There is no hard fast The states duty to protect persons from violent The court has decided the State has a duty to protect fundamental rights of society rule, so the court must look at the circumstances of each case. crime, not in delict but in criminal law.

and may be liable if it doesnt. However, it is clear that there is a civil duty, but it is unclear whether this extends to criminal law. Carmichele v Minister of Safety and Security

Carmichele was brutally assaulted by C. C had been previously convicted on charges of housebreaking and indecent assault for which he had been sentenced to a fine and suspended periods of imprisonment. At the time of the attack, C was facing rape charges. Held since all courts are constitutionally obliged to promote the spirit, purport and objects of the BoR when developing the common law, they were compelled to eliminate any common-law deviation from these aims. Held- the exercise in proportionality previously conducted by the courts in order to determine the duty to act in delictual cases (in which the interests of the parties and the conflicting interests of the community were weighed and balanced) was consistent with the BoR, but that this exercise now had to be carried out in accordance with the spirit, purport and objects of the BoR, and the relevant factors weighed in the context of a constitutional State founded on dignity, equality and freedom in which the government had positive duties to promote and uphold such values. C: Causation

Crime of Circumstance The unlawful conduct does not have to cause anything to happen, as the very act of doing it is a crime. e.g. Driving under the influence of alcohol, rape (because the rape itself is a crime, there is no further need for a consequence of the action). It is immaterial whether harm was suffered as the mere act itself is a crime. Crime of Consequence The crime of murder is defined in terms of its consequence. The consequence of the action is contained in the definition of the crime, therefore, it is not material how the consequence was attained, as long as the conduct caused the consequence. Therefore, in a crime of consequence, the state must be proven that the unlawful conduct caused the consequence or harm. Causation is not a general element of liability, the general elements are: Conduct; Unlawfulness; Capacity; and Fault.

Causation is a way in which the definitial elements of some crimes are fulfilled. It forms part of the definitial elements. In order for conduct to form a crime of consequence, there must be a factual and legal causation. The two theories of causation 1. Factual Causation This is also known as the but for test. The test when the conduct is a positive act: o The question is asked whether, but for the accuseds conduct, the consequence in

question would not have occurred at all or when it did. If the answer is yes, then the accuseds conduct is a factual cause of the consequence.

Hypothetical Elimination An act is a cause of a consequence if the act cannot be

notionally eliminated from the sequence of events, without the consequence also disappearing. The test when the conduct is an omission: o o But for the omission, the consequence would not have happened. Hypothetical Addition the act that should have been performed (the positive act

legally required of the accused) is notionally added to the facts, and if the consequence disappears, then the omission is a factual case of the consequence. Minister of Police v Skosana The first is a factual one and relates to the question as to whether the negligent act

In the law of delict, causation gives rise to two distinct problems: o or omission in question cause or materially contributed to the harm giving rise to the claim. If it did not, then no legal liability can arise. o If it did, then the second problem becomes relevant, whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue, or whether the harm is too remote. In the second question, legal policy is considered by the courts. There must be a reasonable connection between the harm threatened and the harm done. As a matter of practical politics, some limitation must be placed upon the legal responsibility, because the consequences of an act theoretically stretch into infinity. This case looked at the factual test because no conduct can be considered a cause in fact, unless it passes the condition sine qua non test. Therefore, the court had to look at causation in fact, for it could hardly be challenge that, if the negligence of D and M in fact caused or contributed to the death of the deceased, this was too remote a consequence to give rise to legal liability. The prime cause of death was the occurrence in which the deceased sustained the injury to his bowel. The negligent delay in medical attention, for which D and M were responsible, can only be regarded as having caused or materially contributed to his death if the deceased would have survived but for the delay. Corbett JA held that as to the hypothetical sequence of events, but for the negligence of D and M, the deceased would probably have arrived at the hospital in time, and, allowing for
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the delays that would have probably occurred at the hospital anyway, the operation would most probably have taken place 5 hours earlier. Held viewing all the evidence and adopting a common sense approach, it seems that if the operation had been performed 5 hours earlier than it was, the probabilities are that the result would have been different and the deceased would have survived. S v Van As

The police arrested an adult and locked him in a patrol van. While they were doing so, the young children who were in the company of the adult disappeared. Despite a search, and enquiries by the police among the neighbours, the children could not be found. The following morning two of the children were found dead, due to exposure to the cold and rain. The police officers were convicted of culpable homicide in respect of the death of the children. The court looked at two things: firstly, what the reasonable person would have done in the circumstances; and secondly, whether in so doing he would have prevented the death of the two children. Question 1 it is reasonable to assume, bearing in mind the information at his disposal, that he would not immediately have done anything more than launch a search in the town, assisted by the police officers and other people. Question 2 whether the taking of these steps would have resulted in the children being found? The search in town would of course have been in vain as the children were not there. As regards the further search along the road, the time factor is of importance, dusk or darkness would already have set in. At that time the children were already at the bridge, where they turned away from the road to the railway line. After two older children arrived home that night, the mother of the two deceased accompanied the police in their search for the other three. One of the older children was in a bad condition, and the mother of the other child refused to let her child accompany the police in the search. Held the question is not whether a proper search would possibly or probably have yielded the desired result, but whether the children would beyond a reasonable doubt have been found by such a search. The chain of causation between the appellants omission and the result must be proved beyond reasonable doubt in the same way as the other elements of the offence. The proof was held to be insufficient and the conviction was set aside.

S v Daniels

The first and second accused had been driven by the deceased in a taxi. The deceased was instructed to turn off the main road and stop the car. The deceased and the first accused got out of the car and exchanged words. When the first accused produced a gun the deceased ran away. The first accused pursued him, firing three shots. The second accused followed them. The deceased fell and then another shot was fired. The deceaseds body had 3 bullet wounds, two in his back and one in his ear. The immediate cause of death was brain damage as a result of the bullet wound in the ear. The deceased would have died from the two wounds in his back if he did not receive medical treatment within half an hour. Both accused were charged and convicted of murder. This was the appeal. Whether accused 1 was correctly convicted of murder depends on whether the injuries which he inflicted were a cause of the death, or, if not, whether there was a common purpose between accused 1 and accused 2 to cause the death. Nicholas AJA looked at textbooks and generally found that: where there is no connection between As and Bs acts except that A made it possible for B to kill C, B is taken to have caused the harm to the exclusion of A. There was no medical evidence for the finding that the injuries to the chest resulting from the shots fired by accused 1 were either the sole cause of death, or that they contributed, together with the dead injury, to the death of the deceased. Unless the two accused had a common purpose to kill the deceased, therefore, the first accuseds conviction for murder cannot stand. Nicholas AJA held, therefore, that the two accused were acting with a common purpose to rob and kill the deceased, and so their convictions of murder should be rightly upheld. The appellants counsel contended that the causal chain had been interrupted by the infliction of the head wound which must be regarded as a novus actus interveniens. The court looked at the judgement of S v Mbambo, where two accused were charged with the murder of another man. One of the accused had stabbed the deceased in the chest and the other had thrown a stone at him witch caused a wound behind the right ear. The medical evidence showed that the head wound was not necessarily fatal. The stab wound, however, was a fatal one and death would have occurred soon after the infliction of the stab. The trial court found that the accused had not acted with a common purpose to kill or injure the

deceased and approached the case on the basis that each accused could only be held responsible for his own conduct. Jansen JA, Trengove JA and Van Wisen AJA (3 Judges of Appeal) held that the second appellants participation had not been proved beyond reasonable doubt. Nicholas AJA and Botha JA found both the appellants guilty of murder on the grounds of a common purpose to kill, while Trengove JA found that the first appellant was only guilty of attempted murder since there was a reasonable possibility that the second appellant had fired the shot into the deceaseds head and that his conduct interrupted the causal chain between the two shots fired by the second appellant into the deceaseds back and his ultimate death. Jansen JA applied the sine qua non test: If the first appellant had not produced the gun, shot the deceased twice in the back and the deceased had not collapsed from these gunshot wounds, the second appellant would not have had the opportunity to fire the shot which struck the deceased in the head and physiologically produced his death. i.e. the conduct of the first appellant rendered the deceased a sitting duck for the second appellant, which was sufficient to render the first appellant the factual cause of the deceaseds death. Trengove JA, Nicholas JA and Hansen JA recognised that the test of factual causation, in its sine qua non form, would spread the net of liability too widely. The sine qua non test has to be supplemented by an enquiry into legal causation, based on policy issues. 2. liability is too wide. o o a) There are steps to be considered: Having regard to all the facts and the circumstances, was Xs conduct the factual If yes, then was the conduct the legal cause of his death. There are three main theories of legal causation: The Proximate Cause Theory o The act of the accused may only be seen as a cause of a particular result if it is the direct or proximate cause thereof. Legal Causation The purpose is to restrict the scope of factual causation because the

cause of Ys death?

o This theory has been criticised for being arbitrary and vague because two or more conducts may lead to a similar result. b) The Adequate Cause Theory o An act is a legal cause of a situation if, according to human experience, in the normal course of events the act has the tendency to bring about that type of situation. o It must be typical of such an act to bring about the result in question. If the turn of events is atypical in the sense that the act has brought about an unlikely, unpredictable or uncontrollable result, there is no adequate relationship between the act and the result and the act cannot have caused the result. o All the factual circumstances ascertainable by a sensible person should be taken into consideration. E.g. If X gives Y, who has a thin skull, a light slap on the head and Y dies, the fact that U had a thin skull should be taken into consideration. Therefore, the question is, has a light blow to the head of somebody who has a thin skill the tendency to cause death? Since the answer is yes, there is in terms of this theory of causation, a causal relationship. o The knowledge that must be accounted for is: Facts ascertainable by a sensible person; The extra knowledge of the accused; The totality of human knowledge, including that which only The knowledge that comes to light after the occurrence.

specialists have; and o R v Loubser The accused assaulted the deceased and inflicted a wound on his head. The deceaseds employer advised him to go to the hospital but he neglected to do so and bound his wound with dirty rags. Some days later he contracted tetanus and dies. The court used the adequate theory: this theory uses the condition sine qua non to establish mere factual causation, but in order to limit liability, an actor is held liable only for those consequences which could be expected to follow from his conduct according to general human experience. c) Novus actus interveniens

o This test is expressed in terms of an abnormal, intervening act or event which serves to break the chain of causation. The normality or abnormality of an act is judged according to the standards of general human experience. o When is an act a novus actus interveniens? If, in light of human experience, it is abnormal or unlikely that it Usually where the injury inflicted by the accused is not a mortal S v Mbambo: the head will follow the accuseds act. one. wound inflicted by the second appellant was not proved to be mortal. It was also not proved that the head wound combined physiologically with the later stab wound to cause the deceaseds death. wounds. If the result was foreseen (intent) or reasonably foreseen The victims pre-existing physical susceptibilities never rank as a Medical intervention: in determining whether medical intervention (negligence) then the subsequent act is not a novus actus. nova causa interveniens. can rank as a novus actus, it is important to determine whether the medical conduct was negligent or improper. S v Williams: The deceased was shot in the neck by the accused. She was taken to hospital and placed on an artificial respirator. In time, the doctors decided that the respirator should be disconnected. As a result, the deceaseds hear and lungs ceased to function and she was declared dead. The accused was charged with her murder. He contended that he had not been the cause of her death and that she had died as a result of the disconnection of the respirator. Held this argument was unrealistic and unacceptable. The accused inflicted an injury on the deceased which, in the absence of prompt medical
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If two or more people act independently and inflict subsequent

intervention, would very soon have led to her death. Medical experts did their best to save her life. The respirator enabled her to breathe when she was no longer able to. The doctors stated that after brainstem death, disconnection of the respirator was not an act which could be regarded as the cause of death, but merely as the termination of a fruitless attempt to save her life. Held the causal chain between the wounding and her eventual death existed from beginning to end and that it was not, as contended on behalf of the accused, interrupted and eliminated by the disconnecting of the respirator. S v Counter: the appellant had shot at the deceased and the bullet had lodged in her buttock. The bullet had penetrated the anal canal, and caused a septicaemia leading to pneumonia from which she died from. Held the sequence of events from the time of the deceaseds admission until her death was not interrupted by any causal factor which affected or changed the natural order of events, more particularly there was no intervention or omission by the persons responsible for her care. The appellant was held liable for the consequences of his actions, which lead directly to his wifes death by stages entirely predictable and in accordance with human experience. R v Motomane: the accused stabbed a woman with a knife which damaged a vein. A blood clot formed, stopping the bleeding. The woman probably would have recovered in the normal course of events, but a medical practitioner decide to operate on the victim. When the clot was disturbed, the woman bled to death. It is not so that, because a person suffers an injury as a result of an assault and is thereafter taken to hospital, everything that follows follows because of the assault. It cannot be argued that if he had not been assaulted, he would not be in the hospital and therefore would not have contracted some infectious disease that was prevalent at the hospital.

Held the state had failed to prove that the accused was responsible for the death of the deceased as the causal chain was broken by the decision to operate. S v Tembani: it was held that without medical treatment the deceased would have died, but with medical treatment she would have lived. She received poor treatment and died. Held the first wound was till relevant and thus caused the death. Encouragement to commit suicide: The accepted position in SAL is that where X provides the means for Y to commit suicide, the subsequent voluntary conduct of Y in committing suicide does not necessarily break the causal chain of events set in motion by X. Therefore, Ys conduct does not rank as a novus actus. If Ys suicide was foreseen, X may be guilty of murder. If the suicide was not foreseen, but only reasonably foreseeable, X will be guilty of culpable homicide. committed suicide. The person who instigates, assists or puts another in the position to commit suicide, is busy not with his own life but with that of another, and whether he commits a crime must be decided on the applicable principles of criminal law. Held there is no doubt that the act of another which is the immediate cause of the result necessarily interrupts or excludes the causality of the perpetrators act. To have this effect it would have to be a completely independent act. Where the act of the other person is a calculated part of the chain of causation which the perpetrator started, an eventuality which the perpetrator foresees as a possibility and which he desires to employ to attain his object, or as something on which he may depend to bring about the desired result, the intention will also not be absent, and it would be contrary to accepted principles of law and to all sense of justice to allow him to take shelter behind Ex parte die Minister van Justisie: In re S v Grotjohn: the accused handed his wife a loaded gun with which she

the act as a novus actus interveniens. The fact that it is not a criminal act makes no difference. He who supplies the required and necessary instrument for the intended suicide plays a part in the causation thereof if it is committed. Depending on the facts, the offence may be murder, attempted murder or culpable homicide. o o The issue of foreseeability Foreseeability is an element of intention. Fault and foreseeability are completely different fault is not part of causation, it

has to do with the act itself causing the outcome. Causation: Single Test or Combination S v Mokgethi

During a bank robbery, one of the accused had shot the deceased, a bank teller, between the shoulder blades. The deceased did not die immediately but only 6 months later. As a result of the shot, the deceased became a paraplegic. His condition improved and he resumed work. He was later readmitted to hospital suffering from serious pressure sores and septicaemia which had developed because he failed sufficiently to shift his position in the wheelchair as he had been advised to do by the medical practitioners. The accused were convicted of murder and on appeal the AD held that the wounding of the deceased could not be regarded as a legal cause of the deceaseds death for the purposes of a charge of murder, and that the convictions of murder should be set aside and replaced with attempted murder. Since the prevention of pressure sores is very important for paraplegics, the deceased was taught how to turn himself and how to lift himself up from the seat of the wheelchair in order to relieve the pressure on certain points. Upon re-admission the deceased showed signs of depression. He was treated intensively but in spite of all the treatment, he deteriorated and the septicaemia affected all his organs. The appellants contested the convictions on the murder charge by contending that although the bullet wound had been a cause of his death, it was not the legal cause thereof. Held the pressure sores formed because the deceased negligently failed to change his sitting position in his wheelchair frequently in accordance with the medical advice.
4

Held the bullet wound was a conditio sine qua non. The court stated that it had to determine if the wound was also to be regarded as the legal cause of the deceaseds death for the purpose of criminal liability. The court looked at the question whether an omission of the kind in question can mean that for the above purposes the deceaseds death is too remote. Van Heerden stated that generally speaking, the perpetrators conduct which is the sine qua non of the victims death, is too remote from the consequence for the purposes of criminal liability where: i. ii. iii. Held: 1) The injury was initially life-threatening in the sense that the deceased would probably have died as a result of the wound in the absence of medical treatment. The fatal quality of the wound was, however, altered by the treatment. The result was that when the deceased was discharged from hospital, there was no immediate threat to his life. 2) It was the very failure by the deceased to follow instructions which led to the formation of the pressure sores. The septicaemia was not a direct consequence of the original injury. 3) The appellant was educated, and even though from the perspective of a paraplegic his living conditions were very poor (a two roomed house with no indoor bathroom), the lack of proper facilities did not play a roe in his non-compliance with the instructions. The omission was both objectively and subjectively unreasonable. Held the appellants convictions and sentences must be set aside, therefore, the charge of murder is substituted with attempted murder. An omission on the part of the victim to obtain medical or similar advice The injury was not inherently mortal or was no longer so at the relevant The omission was objectively unreasonable, i.e. unreasonable in the light also of characteristics, principles, etc. of the victim. or treatment or to heed instructions was the immediate cause of his death; time; and

D. excluding unlawfulness).

Unlawfulness Any act which contravenes the law in prima facie unlawful,

but criminal liability may be escaped if there is a legal ground for justification (i.e. a defence The idea that unlawful conduct may be justified arises from

the recognition that there may be circumstances or considerations that deprive the unlawful conduct of its blameworthiness, or remove the social need to punish the accused for the performance of the conduct. o o o unlawful. Direct use of force this is not unlawful if used in game sports, etc. Intentionally killing someone not unlawful if done so in self defence, for Examples of conduct which is not unlawful: Stopping at a red traffic light failure to do so in terms of an ambulance is not

example. Objective reasonableness is the basic criteria (i.e. the test) for unlawfulness. This is based on the boni mores/legal convictions of the community. The onus is on the prosecution to prove unlawfulness.

There are several defences excluding unlawfulness, or situations where in weighing the interests in bulk, it becomes necessary to condone what would otherwise be declared wrong. I. Private Defence

This is when a person, faced with an imminent or commenced unlawful attack on their legal interests may take the law into their hands by using reasonable force to repel the unlawful attack. The central organising principle of private defence is the comparative assessment of the harms involved where the harm caused by the defence is greater than the harm threatened by the attack, the defence is not justified. Requirements relating to the Attack The person using this defence must prove:

1) 2) 3)

There was an attack; Upon a legally protected interest; and That the attack was unlawful.

1. Attack Fear alone is not enough to justify private defence there must be an actual or

imminent attack upon an interest of the defender. Therefore, private defence can only be resorted to in respect of an attack that has already begun or is imminent. o o o o o resort to a private defence. If the nature of the attack is such that the threatened harm cannot be avoided, the victim should be entitled to act with such anticipation as is necessary for effective protection. o The attack must not have been completed: any measures taken after the attacked has ceased would be retaliatory rather than defensive and therefore unjustified. 2. Protected interest Private defence may be resorted to only in respect of an interest recognised and protected by law. Life and limb: Commenced: Private defence cannot be resorted to where the person invoking it has the time Where the attack is anticipated at some time in the future, resort to a pre-emptive This does not mean that the defender must wait until the blow has fallen before

ore opportunity to seek other forms of protection. attack is not permissible. acting in defence. Imminent If the attack is immediately about to begin (imminent) the victim may legitimately

o to the extent that the defender is entitled to use deadly force for protection. o Jackson The appellant was charged for murder, but was convicted of culpable homicide.

It

is universally accepted that a person is entitled to protect life and limb by private defence, S v

The appellant and his wife had marital problems and were separated for about a week. One night there was a family gathering without the appellant (although he was eavesdropping). He heard his sister suggest the deceased should give him a good hiding. The appellant walked through the meeting room to go and telephone the pastor to come and act as mediator, when the deceased and the appellants brother followed him into a room and assaulted him. The appellant fired three shots from his gun, one wounding his brother and the other two killing the deceased. The appellant alleged that he had killed his father-in-law in self defence. Held in SAL the courts have taken the view that a person is justified in killing in self defence not only when he fears that his life is in danger, but also when he fears grievous bodily harm. Held that the trial judge should have directed the jury that the appellant would have been justified in shooting the deceased if he justifiably feared that he was about to suffer grievous bodily harm. The failure to direct the jury was an irregularity which prejudiced the appellant. Therefore, the appeal was allowed and the conviction and sentence were set aside. o Interests of third persons: Although it has been suggested that the defence of third parties is only

lawful where there is a relationship in terms of which it is the defenders moral or legal duty to act in defence. This view is not generally favoured. o o This principle must be limited to the protection of particular individuals R v Patel and not society at large.

The accused shot and killed the deceased. Hid defence was that the deceased had initiated a murderous attack with a hammer upon his brother, and that he shot the deceased in defence of his brother. The trial court was of the view that the accused had exceeded the limits of justifiable homicide. On appeal it was held that a person has the same right to use force in the defence of another from a threatened danger, as he would have to defend himself, if he were the person threatened. Held men faced in moments of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros. and cons. Held it may well be that the danger could have been averted by less drastic means, but one must beware of being an armchair critic. The appeal was allowed and the conviction and the sentence were set aside. 3. Unlawful attack Private defence can be resorted to only in respect of an attack that is unlawful.

Thus, a person may not defend himself against lawful arrest, or justifiable punishment, nor may one act to protect ones property from lawful search or seizure. o The attacker may not act against self defence, unless the private defence exceeds the bounds of private defence. If the attacker lacks criminal capacity (e.g. minor, mental ill etc), then the attack is RvK

not unlawful, therefore, defence against such an attack is lawful. A 14 year old boy was charged with the murder of his mother, a mentally deranged person who attacked the boy, and he stabbed her with a knife. The court stated that the appellant was unable to resort to flight in fact, he was rescued by his sister. Held the trial court should have used its discretion and applied its mind to the question. On the record, it seems that there was a reasonable doubt whether in all the circumstances of the case, the boy exceeded the bounds of self defence. The appeal was allowed and the conviction and sentence set aside.
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Requirements relating to the defence In order for a situation of private defence to arise, there must be evidence that the defence was: i. necessary to avert the attack; ii. a reasonable response to the attack; and iii. directed against the attacker.

1.

Defence necessary to avert the attack The attack cannot be averted in any other way, and so the private defence must be

necessary. A defence is necessary where it is the only means available at the time for warding off the attack. Where the threat is one of personal injury, the defence might not be necessary if the attack can be avoided by retreat or escape. Some legal systems, concerned about the preservation of human life, may impose on the victim a duty to retreat in so far as this is possible and if the retreat would not expose the defender to even greater danger. There is no duty to flee in SAL and the accused may be unable to flee. If to flee would be

to worsen the accuseds chances of avoiding the injury, he would be justified in standing his ground and defending himself. If there is no danger in retreating, the question has been raised whether there is a duty to retreat rather than resort to some defensive action. Burchell states that the duty to retreat may be viewed as demeaning and insulting to the innocent victim of an unlawful attack. In SAL there is no absolute duty to retreat. o R v Zikalala The accused stabbed and killed the deceased in a crowded beer hall. The accused claimed that the deceased had attacked him with a knife and that he had stabbed him in self defence.

The appellant had avoided two thrusts of the deceaseds knife by dodging and jumping over a bench. To repel a further attack, he opened a small pocket knife and stabbed the deceased. The trial judged had remarked I cannot understand why he did not, when he had jumped over one bench, keep on jumping over other benches. On appeal it was held that the appellant was not called upon to stake his life upon a reasonable chance to get away. Moreover, it must not be assumed that the mental calm and ability of a person who suddenly becomes the object of a murderous attack is calm and there is an ability to reason out ways of avoiding the assault without having recourse to violence. The appeal was allowed and the conviction and sentence set aside. 2. Reasonable response to the attack There ought to be a certain balance between the attack and the defence. However, there South African courts prefer the reasonableness test to that of proportionality. This is

need not be proportionality, instead, all the factors must be taken into account. because reasonableness takes all factors into account, and asks whether the defender acted reasonably. This test allows the court to assess the defence in the context of factors such as the relative strengths and relationship of the parties; their respective age, gender, size and strength; the nature and persistence of the attack; the interests threatened and its value; the location of the incident etc. The issue of proportionality relates to the interests involved (e.g. is it appropriate to take

life in order to protect property), of to the means used (e.g. using a gun in defence against punches). o There need not be a proportional relationship between the nature of the interest threatened and the nature of the interest impaired. Ex parte Minister van Justisie: In re S v Van Wyk: The interests of the attacker and the victim are seldom similar or equivalent. Proportionality will not do as a general basis for private defence. One who invades anothers rights, who defiantly ignores the prohibition, warning and resistance of the defender so that he can only be prevented by the most extreme measures, can with
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good reason be seen as the author of his own misfortune. If he is prepared to risk death in violating anothers rights, why should the defender, who is unquestionably entitled to protect his rights, be viewed as the one acting unlawfully if he uses deadly force rather than sacrifice his rights? o party. o There need not be a proportional relationship between the value or extent of the injury inflicted or threatened to be inflicted by the attacker and the value or extent of the injury inflicted by the defending party. There need not be a proportional relationship between the weapons or means used by the attacker and the weapons of means used by the attacked

3.

Defence directed against the attacker This defence can only be exercised against the attacker, not against a third party.

The test for private defence The test is objective: a situation is viewed from the perspective of a reasonable man. Therefore, both the nature of the attack and defence must be judged from an external perspective. Would a reasonable person in the same position of the accused have acted in the same o R v Zikalala: it was held that the court when assess the actions of a reasonable person, should not assume the position of an armchair critic. The judge should rather try and put themselves in the position of the defender, at that critical moment. o R v Patel: the court must look at exogenous factors, i.e. the victims usually dont have time on their side to weigh the pros. and cons. of the situation. o S v Ntuli: the accused was charged with murder, but was convicted of culpable homicide as it was found he had exceed the bounds of reasonable self defence. The accused was a strong man who had paid lobola for the deceased daughter. The mother in law told him she had left. The deceased attacked the accused and a fight broke out. The court looked at the general principles relating to self defence: way?

a.

A may intentionally and unlawfully apply such force as is

reasonably necessary in the circumstances to protect himself against unlawful threatened or actual attack at the hands of B. The test whether A acts reasonably in defence is objective. b. c. If As defence, so tested reasonable, both his application of If the stage is reached at which A ought reasonably to force and his intention to apply it, are lawful. realise that he is using more force than is necessary to protect himself against B, and he ought to reasonably foresee the possibility of the resultant death of B, and such death ensues, A will be guilty of culpable homicide.

Putative Private Defence Putative, or supposed, private defence relates to the mental state of the accused. This is where the accused honestly believes that he is acting in private defence, but the

belief is misplace and there is a mistake as to the danger that is there. The law does not recognise this mistake as grounds for private defence. The mistake may remove the element of intention, but there is no justification for the mistake. This defence is very different from the objective private defence proper. Where the accused raises the defence of private defence, the judicial inquiry commences

with an examination of the unlawfulness or the lawfulness of the accuseds conduct. If the conduct is lawful then an acquittal results. Provided a foundation is laid for putative private defence, then the court proceeds to examine whether the accused genuinely, albeit mistakenly, believed that he was acting in lawful private defence or whether his belief was also held on reasonable grounds. o S v De Oliveira: The appellant and his wife lived in a dangerous area where robberies and housebreakings were common. Their house was secure and burglar proof. One afternoon, whilst the couple was asleep in their home, V, an employee of the appellant, and two of his friends, arrived at the house. They wanted to get into Vs room. The wife heard knocking and woke up the appellant saying that there were unknown black men in the garden. The appellant picked up a pistol and went to the window overlooking the driveway. He opened the window and fired 6 shots. One hit one of Vs companions killing him. Another shot hit V, injuring him. The appellant pleaded putative private defence. A person who acts lawfully, provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limits. The test for private defence is objective would a reasonable man in the position of the accused have acted in the same way. In putative private defence it is not lawfulness that is in issue, but culpability If an accused honestly believes his life or property in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone, his conduct is unlawful.
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The accuseds erroneous belief that his life or property is in danger may very well exclude dolus in which case liability for the persons death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide. On appeal the court looked at the issues whether the State had proved beyond all reasonable doubt that the appellant subjectively had the necessary intent to commit the crimes of which he was convicted, i.e. did he entertain the honest belief that he was entitled to act in private defence. There was no indication that any attack on the house or its occupants had commenced or was imminent. The appellant was relatively safe in the house. Therefore, the appeal and the defence were rejected. Private defence of property Under SAL, a person may use force, including deadly force, in order to protect property and his rights therein. Defence in property may involve the following types of defensive action: Use of force to prevent a thief or robber from taking or making off with movable goods,

or for the purpose of recovering stolen property. The owners defence would often take the form of hot pursuit of the offender. Infliction of physical harm in order to prevent damage or destruction of movable or immovable property. Physical resistance to intrusion of defenders dwelling. Placing protective devices that inflict physical harm to prevent anticipated intrusions into

property or premises. Conditions relating to the attack In order for a situation of private defence of property to arise, there must be evidence of: i. ii. iii. iv. The property was presently in danger of damage or destruction that was unlawful.

The Property: o Private defence has been permitted in cases of unlawful search, entry into premises, or remaining on property.

defence took place.

Presently: o The danger must be currently present it must have existed at the time that the o If the danger has passed or the harm or damage that it threatened has already occurred, the owner cannot justify any use of force upon the perpetrator. Therefore, to shot a thief who has already abandoned the property is not lawful. o The danger need not have commenced or be imminent, e.g. defence of property by the means of protective devises such as sharp objects, traps or trap-guns.

Danger: o Private defence of property can only be resorted to if there is serious danger to the property or to the owners rights therein. o In the case of corporeal property, the danger must involve the risk of loss, damage or destruction of the thing. o In the case of incorporeal property, the interference with the right must be substantial.

Unlawful: o The danger to property must arise from acts that are not lawful. Any form of unauthorised taking of movable property will obviously be unlawful. o Where the interference with the property rights is authorised by law, the use of force to prevent the interference cannot amount to legitimate private defence.

Conditions relating to the defence In order for a situation of private defence of property to arise, the defence must have been: i. ii. iii. necessary to avert the danger; a reasonable response to the attack; and directed against the attacker.

 o o o o

Necessary: An owner, when confronted by a robber, is not Likewise, the inhabitants of dwellings are not expected The measures taken to protect the defenders

expected to abandon his property nor to submit to the attempt to take it from him. to flee from their homes, rather than resist the intrusion of a burglar or thief. proprietary interest must have been the only means whereby he could avoid the danger. Deadly force may be used to protect the imminent destruction of a home by arson. o Reasonable: The test whether the means of defending the property

were reasonable having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, the time and place of the occurrence. Killing in defence of property Ex parte Die Minister van Justisie: In re S v Van Wyk Van Wyk was a shopkeeper who had been plagued by a lot of burglaries. He had tried

various ways of stopping the raids, including the use of a watchdog, and the employment of a night-watchman, but all to no avail. With the knowledge of the police, he rigged up a shotgun in such a way that it would be triggered off by anyone entering the shop by a certain window or disturbing the goods behind the counter. The intruder was expected to be wounded only in the leg. He also pinned a notice on his shop door in both English and Afrikaans to the effect that a shotgun had been place inside and that anyone who entered the shop did so at his own risk. There were two issues at hand: o o Can a person rely on the doctrine of private defence where he kills another in Is so, were the bounds of private defence exceeded in this case?

order to protect his property?

Steyn CJ (in agreement with Botha JA) looked at several authors and their views on this

issue. He concluded that killing in defence of property is justified where the circumstances are such that the person or life of the owner are endangered, and the threat cannot be otherwise avoided. But there is no pure case of defence in property. Steyn CJ argued that if the use of necessary force if justified, then it is not clear why deadly force must be excluded from that principle. Moreover, the rule that the thief must be unknown to the defender was regarded as unfounded, just as unacceptable as the proposition that the property must not be of little value. The application of Steyn CJs approach does not suggest that the use of deadly force in Rumpff JA (in agreement with Williamson JA) was of the opinion that the first issue

defence of property will always necessarily constitute a defence to a charge of homicide. should be answered as thus: a person can invoke the right of private defence where he kills or injures another in defence of his possessions if the circumstances justify his doing so. The second issue, he said, relates to the decision in the case against the accused and the Rumpff JA held that when a person who has placed a trap-gun for the protection of his

finding that the limits of private defence had not been exceeded. property relies upon private defence, he has no greater right as when he himself acts in protection of his property. If the accused had stood outside the shop with a gun and the deceased had attempted to force open a window, the accused would not have had the right to shoot the deceased in the hip he would have first been required to order him to stop. Trollip AJA also concurred that the bounds of private defence were not exceeded in this

case. S v Mogohlwane The accused was tried on a charge of murder. He had stabbed the deceased in the neck, killing the deceased. His defence was based on self-defence. The accused had come home from work and had a paper carry-bag, in which were

clothes, shoes and food. The deceased grabbed the bag and the accused tried to retain it but had to let it go once the deceased brought out an axe.

The accused went to seek assistance, but there was no one at home. He then took an

ordinary table knife and hastened back to the scene. The deceased was still where the accused had left him. The accused, without attracting the deceaseds attention, grabbed the bag. The deceased held on to it and pulled out the axe again. The accused the stabbed the deceased. Held- the articles which the deceased had stolen were valuable to the accused. It was further held that the State had not proved that the accuseds return to the scene in time, causation was so removed from the deceaseds act of robbery, that it could not be described as instanter conduct. Held the accused had acted in self-defence and therefore lawfully.

Ex parte Minister of Safety and Security: In re S v Walters The Constitutional Court Justice, Kriegler J, emphasised that what is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer, and that these interest must now be weighed in the light of the Constitution. In Van Wyk, Steyn CJ specifically rejected the imbalance between life and property However, Kriegler J stated that the Constitutions emphasis on proportionality must now

argument as it was an argument based on proportionality based under the common law. come into play in determining whether it is justifiable to kill in defence of property. In Constitutional terms, life must be prized above property and so Van Wyks days are now numbered. Exceeding the bounds of private defence If, after the objective test, the court is of the view that: o Although the defender believed that he was entitled to engage in a defensive

attack, objectively viewed the situation was not one in which he was justified in resorting to a defence; or o If a defender was justified in defending his property, but the steps he took exceed what was necessary to repel the attack, the result is that the defence must fail and the defenders killing, assault or damage will be regarded as unlawful.

II.

Necessity

This is when a person is confronted with a choice between suffering some evil and breaking the law in order to avoid I, and they choose that latter in the alternative An element of necessity is resent is private defence, but they are different in that private

defence requires an unlawful attack by the complainant while the defence of necessity does not. Moreover, where private defence is aimed at the wrongdoer, necessity usually results in the infliction of harm upon an innocent person. The defence of necessity is confined to legal prohibitions while the defence of impossibility, which also involves an element of necessity, applies only to a failure to carry out a positive obligation imposed by law. Necessity may arise from one of two ways: o o Compulsion resulting from an unlawful human conduct; Inevitable evil results from a non-human emergency situation, e.g. shipwrecks,

climbers allowing the other to die to save themselves. S v Bailey

Two prisoners were charged with the murder of a fellow prisoner. Accused 2 alleged that he had acted under compulsion of accused 1. Held the real foundation of necessity as a defence is that necessity can, in the circumstance, constitute either a defence excluding unlawfulness or a defence excluding fault. Held the respondent, despite his fear, acted in with knowledge of unlawfulness, and so since he helped accused 1 in killing the deceased with intention combined with knowledge of unlawfulness, he should have been found guilty of murder, not culpable homicide. R v Mohamed

An act which would otherwise be a crime may be excused if the accused can show that it was done only in order to avoid consequences which could not otherwise be avoided and which, if they had followed, would have inflicted upon him and upon others, whom he was bound to protect, inevitable and irreparable evil inflicted by it was not disproportionate to the evil avoided. Where the accuseds conduct had obstructed the police in the execution of their duty, but the court was satisfied that the dominant motive in the minds of the accused was a desire to protect

themselves from an attack which they reasonably feared from a party of persons accompanying the police; that they did no more than was reasonably necessary to protect themselves against such attack, and that their temporary resistance was not disproportionate to the evil they were seeking to avert from themselves. Requirements of necessity as a defence For an act to be justified on the ground of necessity, i. a legal interest of the accused must have been endangered ii. by a threat which had commenced or was imminent but which was iii. not caused by the accuseds fault iv. and it must have been necessary for the accused to avert the danger, and v. the means used for this purpose must have been reasonable in the circumstances. Legal interest endangered o o Danger of death, serious bodily injury or the threat to property may justify an act R v Canestra

done in necessity. Held necessity does not extend to threats of mere pecuniary loss such as fear of losing ones employment or livelihood. Held the only necessity which was compelling the appellant to risk contravening the regulations is economic and that is not a form of necessity that the law recognises. If he cannot void infringing the law without abandoning his occupation then he and his fellow fishermen must seek some other means of livelihood. The regulations envisage fishing as a lawful occupation but they do not oblige anyone to pursue it. Threat commenced or imminent o o The threat of harm must have commence or be imminent. S v Mtewtwa

The question of imminence of the threat relates to the probability of it being put into effect and the means available to the accused to avert the harm with which he has been threatened.
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S v Lungile:

There was a robbery and one f the robbers professed that he did it under compulsion. He said that he was given the instruction by one of the other robbers to collect various items that were being robbed. The robber doing the instructing was in possession of a firearm, whilst the appellant was not. He feared that the other robber would shoot him for failing to obey. It was held that mere fear without actual threat does not suffice. The appellant was a member of a gang and he actively participated in the execution of the robbery. He was aware that the other two members of the gang had firearms. Held - because there was a prior agreement to commit a crime (the robbery), the fact that the appellant left the scene of the crime before shooting broke out does not warrant use of the defence. The death of the deceased caused by a gunshot fired in the course of a gun battle between the second appellant and the police was not abnormal, unforeseen or independent of the acts of the robbers. It was foreseeable that a policeman could enter upon the scene, that a gun battle could ensue, and that an innocent part might be injured or killed in the crossfire. Threat not caused by the accused's fault o o A person cannot rely upon his own default to escape criminal liability. S v Bradbury

As a general proposition, a man who voluntarily becomes a member of a criminal gang with knowledge of its disciplinary code of vengeance cannot rely on compulsion as a defence. A minor member of a dangerous gang of criminals had reluctantly played a part in the planned murder of a benefactor of his, being influenced by fear of reprisals of a serious nature on himself or his family should he refuse. The trial judge imposed the death sentence. On appeal it was held that in weighing the influence of fear against the need for a deterrent to this kind of gangsterdom, there was

nothing so unreasonable in the trial in the trial Judges decision as to justify in finding that his discretion had not been judicially exercised. Necessary for the accused to avert the danger o What is required is that the harm would most probably

have followed if the accused had not acted as he did. The accused must do everything possible to avoid the compelling force and, as in the case of private defence, should flee if the harm can reasonably be avoided by flight. o threat. Reasonable means to avert the danger o The accused must do no more harm than is necessary to Objective test = from the point of view of a reasonable person, in light of all the circumstances, can the accused have been expected to resist the

avoid the danger. In determining whether this element is present, a court has to engage in the difficult task of balancing interests. o defence of necessity. o S v Malan The appellant was a farmer. For many years, stray animals would trespass on his farm and cause damage. Although he had repeatedly impounded the animals it took too much time and effort to do that. Moreover, the experienced had showed that it was not effective. The complainant was the owner of the animals that strayed on to the appellants land. One day the appellant noticed three of the complainants goats on his land and shot the dead. He was charged and convicted of malicious damage to property. The five requirements for the defence of necessity were set out. It was held that the actual dispute in this case was in terms of factor 5, whether the accuseds conduct was unreasonable. Held although the option of impounding the animals yet again remained available, it could not be expected of the appellant, with regard to the circumstances, to try to impound them on each occasion that the problem presented itself.
6

Where the accused yields to a threat which he was

obliged by law to resist, it will be more difficult, but not impossible, for him to argue the

Moreover, it could not be expected of the appellant, every time he noticed a stray animal on his land, to engage the owner in discussion, before implementing more drastic steps. Held the fact that the appellant had decided a week before the incident to shoot stray animals on his land, did not preclude his reliance on necessity. And that the requirement for the defence of private defence, namely that the steps taken had to be the only steps which the danger could be averted, was not appropriate in the cases of necessity. The onus of proof This is the same as in private defence, that is, the State must rule out the possibility of defence of necessity. S v Pretorius

The onus of proof in a defence of necessity, as in self defence, resets on the State to rule out the reasonable possibility of an act of necessity. It is not for the accused to satisfy the court that he acted from necessity. The accused had pleaded guilty and been convicted of exceeding the speed limit. From the evidence it appeared that his child had taken 9 disprin tablets, and that the accused had considered that his childs life was in danger and that he wanted to get him to hospital as soon as possible. Held the State had not disproved the defence. The conviction was set aside. S v Mtewtwa

The accused was charged with housebreaking with the intent to steal. The accused was not represented at the trial and pleaded guilty. When the accused gave evidence, it became apparent that he was a prisoner who, with another prisoner, had been sent to the abattoir to tidy the grounds and water the flowers under the supervision of a warder. The warder had ordered him to break into the abattoir and to remove the meat and give it to the warder. The warder had threatened him with solitary confinement if he did not oblige. The Attorney-General and the magistrate did not accept the defence of necessity, stating, firstly, the accused did not complain to the inspector who investigated the theft, and, secondly, the threat was not imminent in that the warder himself could not carry it out since he could do no more than report the accused to the prison authorities.

On appeal, the first criticism was denied by stating that the accused was confronted by the inspector in the presence of the warder and both denied their complicity in the theft. As to the second criticism, it was held that where a person is in custody and is threatened by a warder with solitary confinement, then, at the very least, the State must show that the accused could reasonably have complained to the prison authorities of the warders wrongdoing. The warder was continuously in authority over him and it is not suggested that he was not in a position to carry out his threat. Killing in circumstances of necessity Previous legal position R v Dudley and Stephens

The accused, two sailors, were charged with murdering a cabin boy. They had been shipwrecked and were cast drift in an open boat on the high seas. On the 18th day when they had been seven days without food and five without water, and when the boat was about 1000 miles from land and the boy appeared to be on the point of dying, the accused killed him for the reason that the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour. The test of necessity in this instance failed. It was declared that a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. The accused were therefore convicted of murder. R v Werner

The accused, together with H, had been prisoners-of-war detained in a camp in SA. A German officer, L, also a prisoner of war, considering H to be a source of danger in the camp, had ordered the accused to execute H. subsequently H was overpowered and throttled. Accused alleged he had taken part in the killing of H because he feared he would be punished if he did not obey the orders given to him. There was evidence that the accused feared that if they did not carry out the orders, they would be regarded as traitors, and would run the risk of sever punishment and even murder on their return to Germany.

Held sometimes immunity of criminal liability is granted to an accused person who acts under compulsion or from necessity far beyond its commonly recognised limits. However, Watermeyer CJ held that, although he would not define the extent of the recognised limits, killing of an innocent person is never legally justifiable, by compulsion or necessity. S v Bradbury

Held to allow a person who has committed a crime to plead that he did so because he feared the discipline imposed upon him by a gang of wrongdoers more than the discipline of the State is to undermine the functions of the State. Law is a social science. Its purpose is to regulate the conduct between man and man, and man and the State. It is the prerogative of the State to make laws and through its courts to enforce them. The appeal court found that the circumstances did not render the accused less blameworthy. The Court noted Bs willingness to be drawn into the net of the gang and to participate, although reluctantly, in the killing. It was further held that the unreasonableness of Bs alleged fear, his failure to take steps to remove the compulsion, and stressed particularly the policy issue with regard to the element of gangsterism. The present legal position S v Goliath

This is the leading case in SA for killing under compulsion. The first accused approached the deceased and asked for a cigarette and money. The deceased replied that he had no money and accused 1 stabbed him in the chest and ordered accused 2 to bind him up. Goliath, accused 2, objected and was then threatened by accused 1, that unless he did as he pleased, he would stab him to death. Goliath feared for his life and so bound the deceased and took his shoes off, as instructed by accused 1. Both accused were charged with murder, Goliath as an accomplice. The trial court found accused 1 guilty of murder and sentenced him to death. Rumpff JA stated compulsion is aground which, under suitable circumstances, justifies an act which would normally be unlawful, and this applies also to murder. The issue at hand was whether reasonably, the threatened person should have resisted or not. If the law, in particular circumstances, would not reasonably expect the threatened person to resist, then his act under compulsion would be justified and therefore lawful.

It was accepted that the law does not necessarily wish to enforce the highest ethical requirement, and that, as far as the law is concerned, it is accepted that the ordinary, normal persons life is more valuable to him in mortal fear, than the life of another. In every concrete case, interest must be weighed up and, it could happen that the law and the highest ethical ideals do not always coincide. In R v Hercules, a robber alleged that his companion had threatened to shoot him if he did not accompany him on a robbery. During the robbery, an innocent person was shot by the companion. The court convicted the appellant of culpable homicide. On appeal, it was discovered that the appellant could have escaped his companions compulsion and withdrawn his aid at the critical moment with the deceased was shot and killed. Notwithstanding this, the court only convicted the appellant of culpable homicide because the evidence revealed that the first accused might have exercised a certain amount of coercion of accused 2. The majority in the present case held that, looking at the circumstances of each case, a special defence of compulsion can constitute a complete defence to a charge of murder so as to entitle an accused to an acquittal. Therefore, Goliath was justified in his actions. S v Peterson

Where the State, in the case of an accused who had been charged with the murder of a coprisoner, had not proved beyond a reasonable doubt that the fictional reasonable person in that accuseds position an in his circumstances would have offered resistance to a co-accused who had threatened him with death had he not participated in the murder, the court, on appeal, held that the accuseds appeal against his conviction had to succeed and his conviction set aside. The test in Goliath was followed. It was held that a prisoner who had succumbed to the pressures and had joined a gang is strictly bound by the gangs code and rules, and risks losing his life, or at the least, receiving a beating. Held the compulsion existed in two parts: a) b) appellants life in the event of further disobedience. compulsion exerted by the gang, who the direct threat against the forced the appellant to comply with their orders, and

II. Impossibility This is where it is impossible for the accused to comply with a positive order of the law, whereas necessity is applicable where the accused could not help doing an act prohibited by law. Lex non cogit ad impossibilia = the law does not compel anyone to do the impossible. Requirements of the defence of impossibility For the defence to succeed, there must be: i. ii. iii. o A positive obligation imposed by law, compliance with which was physically impossible through no fault on the part of the accused. Positive obligation imposed by law: What is required is a rule of law that a person shall do a particular act (i.e. an

omission). Where the accused has done an act that the law forbids, he cannot claim it was impossible for him not to break the law because he could have avoided the breach by refraining from doing the act. o S v Canestra: the charge was of contravening regulations which prohibited the catching of undersized fish. Impossibility was not relevant since the regulation did not oblige anyone to carry on the occupation of fishing. o o This defence will very seldom be used for common law crimes as they are mainly legal prohibitions rather than orders. Physically impossible to comply with the law: The impossibility must be absolute, and not merely relative. So extreme difficulty

on the part of the accused will not suffice. It must have been objectively impossible for anyone in his position to comply with the legal obligation. o o R v Jetha: it is physically impossible to attend a meeting when one is several thousand miles away and could not have learnt of the meeting till after it was held. Impossibility not due to the accuseds own fault: A person cannot rely on his own fault to escape liability. In R v Korsten, the

township foreman would not allow the accused to dip his cattle as required by law

because he could not produce the necessary coupons which he had failed to obtain in advance.

III.

Superior Orders

This defence usually occurs in professions requiring strict hierarchies of superiority. It flows from the Roman Dutch dictum: he is free from blame who is bound to obey. This defence does not refer to normal lawful commands, but to those which are authorised by law. The defence is based on public policy s199 (6) of the Constitution. Requirements for the defence of superior orders For the defence of obedience to superior orders to succeed, the order must: i. ii. iii. o Emanate from a person lawfully placed in authority over the subordinate; The subordinate must have been under a duty to obey the order; and He must have done no more than was necessary to carry out the order. Superior: The act must have been in response to the order of a

lawfully constituted superior officer. The person giving the order must be authorised by the law of the land to issue orders and the person carrying out the order must be recognised by the law of the land as being obliged to obey orders. o o Duty: Duty is determined by the law establishing the The courts are reluctant to allow a soldier to invoke

hierarchy of authority in the organisation. the defence where he has carried out an unlawful order simply on the ground that he was under a duty to obey. However, it is unjust to punish a soldier for obeying the orders of a superior officer. The courts have thus devised a compromise solution which allows a defence of obedience to superior orders, provided the orders are not manifestly and palpably unlawful. o The test is whether objectively viewed the order is lawful or unlawful. If it would appear to a reasonable person that the order in unlawful, the soldier ought not to obey it and if he does, his act is unlawful and he is liable to punishment. o R v Albert
7

A boy under 14 assisted his father in stealing oat-hay from a loft. There was no evidence that the father actually ordered the son to assist him, but it was fairly presumed that he did. Held it cannot be reasonably expected from a child under 14 that he will disobey the illegal orders of the father unless the offence he is ordered to commit is of an atrocious kind. If he has reached the age of 14 he is presumed to have sufficient discernment between right and wrong, and sufficient strength of will to disobey unlawful orders. o S v Banda Friedman J held that an order to commit treason is so obviously manifestly and palpably unlawful that a reasonable person in the position of the accused would have regarded the order as manifestly unlawful. Therefore, the defence was rejected as the subordinates should have known better. o Mostert v S The appellant was convicted of assault. The appellant and complainant were employed as traffic officers. On the day in question, the complainant had been on duty and in full uniform. Whilst on duty, an incident occurred between him and a member of the public, and the citizen lodged a complaint to the superintendent. The superintendent ordered the appellant to escort the complainant t his office. The complainant refused to be escorted by the appellant. The appellant then radioed the superintendant, whereby the superintendent again instructed the appellant to bring the complainant to his office. The complainant alleged the appellant assaulted him to get him to the superintendents office. The court looked at the three requirements for the defence of superior orders. The 1st and the second elements were easily agreed with, what was in dispute was the 3rd element. Held both appellant and superintendent were aware that force could not be used to take the complainant to the office. Even if the superintendent had ordered the appellant to use force, that would have been an unlawful order, and the appellant, being an experienced traffic officer, would have known better. Court was not satisfied the requirement had been met. The court then looked at the requirements of assault: unlawfully and intentionally (a) applying force to another directly or indirectly; or (b) threatening another with immediate

personal violence in circumstances which lead the threatened person to believe that the other intends or has the power to carry out such a threat. The court held that the appellant had lacked the intention to assault the complainant, so the appeal was upheld. IV. Disciplinary Chastisement In the CL, parents, guardians, teachers and even courts, were authorised to inflict moderate corporal punishment upon the children in their care. Du Preez v Conradie

The applicant and the 2nd respondent were husband and wife and their marriage was dissolved. Their two children were in the custody and control of the 2 nd respondent (their mother). The 2nd respondent married the 1st respondent and a poor relationship existed between the two mother and the ex-husband. The daughter phoned the dad to tell him that her mother and the husband had assaulted her and her brother quite seriously the previous night. Held parents have the right and power to administer punishment to their minor children for the purpose of correction and education. In order to achieve this object parents have the right to chastise their children. The chastisement must be reasonable and moderate, even when it takes the form of corporal punishment. In determining the reasonableness of the punishment the following circumstances must be considered: o o o o o o o The nature of the offence; The condition of the child, physically and mentally; The motive of the person administering the punishment; The severity of the punishment; The object used to administer the punishment; The age and sex of the child; The build of the child.

Held a parent who exceeds the bounds of moderation, or who acts from improper or ulterior motives may well face civil and criminal charges. A teacher or principal has the right to inflict moderate and reasonable corporal punishment, not only as a result of delegation by the parent, but also in his own right.

Held neither a parent nor a step-parent shall molest the children or exceed the bounds of moderate and reasonable chastisement in the disciplining and correction of the children.

This approach was repealed through several movements: 1997 The South African Schools Act 84 or 1996 S v Williams The Abolition of Corporal Punishment Act 33 of

The new constitutional dispensation of South African guarantees many rights that were formerly not recognised, including the right to equality, dignity and the protection of childrens rights. Held juvenile whipping is cruel, inhuman and degrading, and cannot be justified in terms of s33 (1) (limitation clause) of the Interim Constitution. Christian Education South Africa v Minister of Education

The appellant averred that corporal correction was an integral part of the active Christian ethos which it sought to provide its learners, and that the blanket prohibition of its use in its schools invaded individual, parental and community rights to practice religion freely. The respondent replied saying that it was the infliction of corporeal punishment, not its prohibition, which infringed constitutional rights. Held the interest protected in s31 of the Constitution was a qualitative right based on respect for diversity. Therefore, s31 (2) ensured that the concept of rights of members of communities that associated on the basis of language, culture and religion could not be used to shield practices which offended the BoR. The prohibition of corporal punishment was part and parcel of a national program to transform the education system and bring it in line with the values of the Constitution. However, parents may discipline their children through reasonable disciplinary chastisement. R v Janke and Janke

The general rule adopted both by the Roman, the RDL and the EL is that a

parent may inflict moderate and reasonable chastisement on a child for misconduct provided that this be not done in a manner offensive to good morals or for other objects than correction. o The character of the offence, the amount of punishment inflicted, the bodily and mental condition of the child, the nature of the instrument used and the object of the punishment are all matters which have to be considered.

V.

Public Authority

When officers of the courts, or of the law or the state generally, and in certain circumstances even private persons, acting duly authorised instruments of the State and in the proper exercise of such authority, commit crimes, including acts of aggression upon life, person and property, they may be immune to punishment. Diplomatic or Consular Immunity The Diplomatic Immunities and Privileges Act sets out the immunities and privileges Heads of State, special representatives from another state, government or

of diplomatic missions and consular posts, and of members of such missions and posts. organisations are immune from the criminal and civil jurisdiction of the courts and enjoy the privileges accorded by customary international law. Consuls are not diplomatic agents, but are, according to international law, entitled to Diplomatic Immunities and Privileges Act 37 of 2001 3. Immunities and privileges of diplomatic missions and consular posts, and of members of such missions and posts. (1) The Vienna Convention on Diplomatic relations, 1961, applies to all diplomatic missions and members of such missions in the republic. (2) The Vienna Convention on Diplomatic relations, 1963, applies to all consular posts and members of such posts in the Republic. 4. Immunities and privileges of Heads of State, special envoys and certain representatives (1) A head of state is immune from the criminal and civil jurisdictions of the courts in the Republic, and enjoys such privileges as (a) heads of state enjoy in accordance with the rules of customary international law; (b) are provided for in any agreement entered into with a state or government whereby immunities and privileges are conferred upon such a head of state; or (c) maybe conferred on such head of state by virtue of s7 (2).

immunity from civil and criminal proceedings in respect of official acts.

(2) a special envoy (ambassador) from another state, government or organisation is immune from the criminal and civil jurisdictions of the courts in the Republic, and enjoys such privileges as (a) a special envoy enjoys in accordance with the rules of customary international law; (b) are provided for in any agreement entered into with a state or government whereby immunities and privileges are conferred upon such a head of state; or (c) maybe conferred on such head of state by virtue of s7 (2). Court Authority The person officially authorised to execute either the civil or the criminal judgment of the If officials of the court act beyond their jurisdiction then their actions are unlawful, but

court (e.g. the sheriff, the police) commits no crime in doing so. they may nevertheless escape liability for a crime involving intention if they genuinely believed that they were acting lawfully. Lawful Arrest and Use of Force The powers of public officers and private citizens to arrest, either with or without a

warrant, are set out in the Criminal Procedure Act. Provided arrestors act within the limits of these powers, they are not liable for any assault or other crime necessarily committed in order to effect, or attempt to effect, the arrest. Old s49 of the CPA o This was seen as too wide, condoning killing in unnecessary situations. So, it was

not the validity of the use of force in the administration of an arrest that was the subject of dispute, but rather the degree of force permitted. o S49 (2) allowed for the justifiable killing of a fleeing suspect, but the Legislature did not distinguish between the person who resisted an done who fled an arrest. Amendment of s49 o S7 of the Judicial Matters Second Amendment Act 122 of 1998 redefined the

extend of the use of force in effecting an arrest, but as a result of the opposition by the police, it took 5 years for the amendment to come into effect.

During the five year interval, the SCA and the CC embarked on a creative and

thorough re-evaluations of the old s49, and in effect served to introduce the essence of the 1998 legislative version of s49 into their decision through judicial interpretation. o Govender v Minister of Safety and Security The SCA read down the old s49 (1) in terms of the Constitution, to require not merely a proportionality between the nature and degree of the force used and the seriousness of the offence committed or reasonably suspected of having been committed. The SCA, applying the reasonableness standard, highlighted that the nature and degree of force used must be proportional to the threat posed by the fugitive to the safety and security of police officers and others. Therefore, the SCA breathed the essence of the revised s49 into its old form, using the concept of reasonableness. o Ex parte Minister of Safety and Security: In re S v Walters The CC held that s49 (2) was inconsistent with the Constitution, as it infringed the rights to dignity, life and security of persons and could not be saved by the limitations clause. Held the approach taken by the SCA in Govender to s49 (1) applied equally to s49 (2). Therefore, the narrow test of proportionality between the seriousness of the relvant offence and the force used should be expanded to include a consideration of the proportionality between the nature and degree of the force used and the threat posed by the fugitive to the safety and security of police officers, other individuals and society. Held according to Olivier JA in Govender, the arrestor must have reasonable grounds for believing that the suspect poses an immediate threat of serious bodily harm to him or her, or a threat of harm to members of the public; or that the suspect has committed a crime involving the inflictions of serious bodily harm. S49 (1), as re-interpreted, could include both the use of lethal and other force in affecting an arrest or apprehending a fleeing suspect. The same limits would apply to the use of force leading to the death of a fleeing suspect. Emphasise was placed on the purpose of an arrest, being to bring the suspect before a trial court, not to punish the suspect. The requirements of arrest were laid down:

c) d) achieving this purpose, nor always the best. e) suspect. f) be used only where it is necessary. g) h)

The purpose of arrest is to bring Arrest is not the only means of Arrest may never be used to punish a Where arrest is called for, force may Where forcer is necessary, on the In deciding what degree of force is

before court fro trial persons suspected of having committed offences.

least degree of force reasonably necessary to carry out the arrest may be used. both reasonable and necessary, all circumstances must be taken into account, including the threat of violence the suspect poses, and the nature and circumstance of the offence; the force being proportional to all these circumstances. i) j) Shooting a suspect solely in order to Ordinarily such shooting is not carry out an arrest is permitted in very limited circumstances only. permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm. k) defence or in defence of any other person. These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-

The New s49 o The new version does specifically stipulate that the force

used in either overcoming the resistance of an arrestee or preventing his escape must be reasonably necessary in proportional in the circumstances.

Furthermore, if someone seeks to justify the use of deadly

force further limits are required by the new s49. These three additional limits relate to aspects of the belie of the arrestor, which must exist on reasonable grounds. i. The first is that the arrestor must believe on reasonable grounds that deadly force is immediately necessary to protect himself or any other person from imminent or future death or grievous bodily harm. ii. iii. Secondly, the arrestor must believe, on reasonable ground that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed. Thirdly, the arrestor must believe that the nature of the offence is threatening and that the suspect is in the process of committing it.

VI.

Consent

In delict, a person has the free will to waive their legal rights if they so choose. However, in terms of criminal law, since the crime is not so much a harm against the victim as it is against the society as a whole, it does not lie within the power of the victim to render the act not unlawful by consenting to suffer the harm involved. Requirements of the Defence of Consent For consent to succeed as a defence, the following requirements must be satisfied: 1. 2. 3. Consent recognised by law Consent cannot justify a crime which essentially harms the interests of the State rather On a charge of rape, the consent of a female under 12 years is no defence to the charge. Consent may be a defence in instances where the crime concerned involves harm to a The complainants consent in the circumstances must be It must be real consent; It must be given by a person capable in law of consenting. recognised by law as a possible defence;

than those of an individual, such as treason and perjury.

legal interest, the complete and exclusive right of disposal of which rests with Y. e.g. an interest in private property an owners consent to the taking of, or damage to, his property by X will normally deprive the act of unlawfulness. Euthanasia is illegal in South Africa, however: o Clarke v Hurst

The Court based its decision on the legal convictions of the community, and held that a wife who was the curatrix of her husband who was a patient in a persistent vegetative state, would not be acting unlawfully in authorising the witholding of his life-support system. According to the CL, there may circumstances when allowing a terminally-ill person who has no reasonable prospect of recovery to die with dignity, might not be considered contrary to the legal convictions of the community.

Real consent (including that aspect of voluntariness) Although consent may be implied by conduct as well as express, mere submission is not Fraud, whether active or in the form of fraudulent non-disclosure, may nullify consent. In

enough; active consent is required. regard to rape, to destroy consent, the fraud must induce wither error in negotio or error in persona. By a person capable in law of consenting Youth o o o Children under 7 years are legally incapable of giving consent. There is a rebuttable presumption that a girl under 12 years is incapable of Majority begins at the age of 18, and so anyone over the age of 18 years is legally

consenting to sexual intercourse. capable of consenting. Mental defect and intoxication o Consent may be affected to certain degrees.

Unconsciousness o A person who is unconscious cannot consent.

Substituted (proxy) consent o Where persons lack legal capacity to consent themselves, consent may be given

on their behalf by a third party who is expressly or impliedly authorised, as in the case of parents or guardians. o However, the consent will be ineffective if it is given to an act which cannot be legally justified by consent.

VII.

Other defences excluding unlawfulness

Negotiorum Gesto (Unauthorised Administration) This occurs where a person voluntarily performs an act in the interest of another with the E.g. while X was away on holiday, Y notices that Xs house is on fire and so Y

intention of benefiting that other, but without the latters knowledge or consent. intervenes without obtaining Xs consent and breaks the front door to extinguish the fire. This defence can only be used where Y could not obtain Ys consent beforehand.

De Minimis Non Curat Lex This means the law does not concern itself with trifles. This is not a defence which excludes unlawfulness of the accuseds conduct, but rather a decision of a court to allow unlawful conduct to go unpunished on account of its triviality. R v Dane

The appellant was convicted by the magistrate of malicious injury to property. She shad trimmed the hedge between the properties of the complainant and herself. The hedge was planted by the appellant years ago to make a common boundary fence. On appeal, the court held that the damage, if any, was so trifling that the matter should never have come to court. Held the act of trimming a hedge is no more malicious than the act of mowing someones lawn. Held the magistrate erred in finding that the maxim, de minimis non curat lex has no bearing in criminal cases. In charges of extreme triviality, it can and should be applied. S v Kgogong

Where the offence alleged is a simple theft of an article of trivial or no value, the accused should not be prosecuted therefore, but, if he is, he should generally be acquitted. For, in the contemplation of the law, because of the de minimis rule, the offence must be regarded as not having been committed, as in robbery, housebreaking, breach of fiduciary duty, etc. DPP, Easten Cape, v Klue

The respondent was charged in a magistrates court of driving under the influence of alcohol, alternatively with a blood/alcohol concentration in excess of the legal limit. The magistrate

acquitted the respondent on grounds of the de minimis non curat lex principle, but the DPP appealed, stating that driving a car under the influence is not a trivial matter. The court emphasised that when the application of the principle is considered in regard to statutory offences, the aims and objectives of the legislation are important.

4. The General Principles of Capacity Overview Persons are responsible for their criminal conduct only if the prosecution proves, beyond

reasonable doubt, that at the time the conduct was committed, they possessed criminal capacity, or the psychological capacities for insight and for self control. The test for determining whether an accused had criminal capacity is whether the accused had the capacity to appreciate the wrongfulness of his or her conduct and the capacity to act in accordance with this appreciation. According to RL, before fault (mens rea) becomes relevant, an inquiry must be made into

whether the accused had the capacity to be held responsible for his actions or not. If the accused lacked criminal capacity, that was the end of the matter. o Capacity looks at the mental ability, whereas the fault looks at intent.

Before 1981, capacity was only attributed to biological factors such as mental illness and

minority. However, during the 90s, this criminal capacity was extended (e.g. to factors such as provocation). A. Youth Children under 7 years are irrebuttably presumed to lack criminal capacity. Children between 7 and 14 years are rebuttably presumed to lack criminal capacity. In

order to rebut, the test that was laid out in Weber v Santam has to be used, where the court must take into account all factors as well as the judgment of the child. o Weber v Santam Weber, aged 7, was playing roads in the sand of a parking area adjacent to some flats. He was playing behind a parked car when the driver of the car, who had not seen him, reversed and seriously injured Weber. The central issue was whether Weber had been contributorily negligent in regard to his injuries. Jansen JA held that capacity involves the mental ability of an actor, i.e. whether he had the capacity to distinguish between right and wrong and also the capacity to act in accordance with that insight if he does not have this capacity, he is incapable of being held responsible and will he not be liable.

Held- caution must be taken not to place an old head on young shoulders. o Criminal liability of children between 7 and 14 years involves a two stage approach: (1) whether the child possessed criminal capacity, and if so (2) whether the child possessed the mens rea required for a conviction of the crime with which the child is charged. o RvK The accused was under 14 years and had been charged with the murder of his mother who had been an inmate of a metal institution for several years. The deranged mother attacked her son, and while they were struggling, he inflicted two stab wounds with a pocket knife. His sister intervened and separated them, whereupon he ran away. The mother died as a result of the stabs. Held the fact that the boy knew right form wrong was sufficient per se to show that when the appellant was attacked by the deceased at a time when she was demented, he knew that, assuming that he used more force than was necessary to repel that attack, he was not entitled to use that force. Held that the appeal be allowed and the conviction set aside. For children above 14 years, there is no presumption of

lack of capacity for their criminal liability is treated equivalent to that of adults. However, youthfulness may be a factor mitigating punishment. DPP, KZN v P

The accused, a 12 years old girl, approached two men, who were under the influence of liquor, in the street in the vicinity of the house of the deceased and asked them to help her to kill her grandmother who, she alleged while crying, had killed both her parents. She promised that they could remove whatever they wished from the house and even promised the one to have sexual relations with him in return for killing the deceased. They followed her into the house, where she again asked them to kill the deceased who was lying on a bed asleep. The accused had earlier placed sleeping tablets in tea that she had made for the deceased. The accused supplied them with kitchen knives. The accuseds explanation for her participation in the killing was that she had done so on the instructions of an erstwhile boyfriend of the deceaseds daughter, who offered her money to kill the deceased. Her evidence was that the plan on how to kill the deceased had been
8

hatched by this person. Swain J rejected the accuseds version and found that she had acted of her own volition, with no external coercion. On the evidence as a whole there is no reason to doubt the correctness of this finding. On appeal the sentence was attacked by the State as being too lenient given the gravity of the offences committed by the accused. The State argued that the learned trial Judge had failed to exercise his discretion properly and misdirected himself in a number of respects. It was submitted by counsel for the State that, given the compelling aggravating features peculiar to the murder, direct imprisonment should have been imposed upon the accused, notwithstanding her youth. The issue on appeal can therefore be narrowed down to whether the sentence imposed by the trial court was appropriate, given that courts duty to have regard to the seriousness of the offence and the interests of society as well as the true character of the accused. The murder was premeditated. One would expect a person of that age to have been remorseful. Not the accused. While the killers were still in the house after the murder she telephoned her boyfriend a twenty year old to try and fabricate an alibi. As if that was not bad enough she rewarded the killers with a number of household goods belonging to the deceased. The accused was sentenced to house arrest.

B. Mental Incapacity capacity to control their conduct. Insane persons are thus the victims of an affliction that cause them to behave in an abnormal manner. The nature and onset of the affliction is beyond their control and as such, in fairness, they cannot be blamed for their conduct while afflicted by the illness. Mental disease of defect may deprive persons of the

capacity to appreciate the wrongfulness of their conduct. It may also deprive them of the

The RL recognised mental incapacity as doli incapax,

which was also followed by the RDL. SAL however, adopted the EL until 1977. After 1977, the sections 77, 78 and 79 of the CPA came into effect to govern mental incapacity. o There were two aspects which needed to be considered: The accuseds fitness to stand trial: In terms of s77, an enquiry is made into the capacity of an accused to

understand the proceedings so as to be able to conduct a proper defence. An accused who suffers from mental illness may as a result not be fit to stand trial. The court may order that evidence (e.g. medical evidence) be placed Relying on the evidence, the court must be satisfied that there is a before the court so as to determine whether the accused committed the act. reasonable suspicion that the accused lacks the capacity to appreciate the nature of the trial or to conduct a proper defence. o Capacity to understand can be challenged at any stage of the proceedings. Whether the accused had the requisite capacity when he committed the unlawful

act, i.e. the test of insanity: S78 (1) of the CPA provides A person who commits an act or makes an omission which constitutes an offence and when at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable (a) wrongfulness of his of her act or omission; (b) shall not be criminally liable. There are several elements to the test of insanity, namely 1. o Mental illness at the time of the offence: The question of triability is different from that of responsibility: Triability relates to the mental state of the accused at the time that he stands trial; responsibility relates to his mental state at the time he committed the crime. The mental state of the of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, of appreciating the

accused at the time of the crime is the only relevant consideration in so far as criminal responsibility is concerned. o S v Stellmacher The accused had been on a strict weight-reducing diet for weeks and had eaten nothing and performed strenuous physical labour on the day in question. We went to the local hotel and consumed at least half a bottle of brandy. He lapsed into an automatistic state, during which he began shooting at persons in the bar, killing one. The expert evidence was that the automatism was attributable to hypoglycaemia and/or epilepsy of a short duration, and that the accuseds fasting and drinking may have precipitated these conditions. The question which arose was whether the accused had suffered from a mental illness as contemplated by s78 of the CPA. If he had he would not be criminally responsible for his conduct, but would be detained in a mental hospital; if he had not he would be entitled to a complete acquittal. The accused was in a perfectly healthy condition before and after the incident. Held the terms mental illness as intended in s78 (6) indicated a pathological disturbance of the accuseds mental capacity, and not a mere temporary mental confusion which was attributable, no to a mental abnormality, but external stimuli such as alcohol. Held the State had not succeeded in establishing beyond reasonable doubt that the accuseds conduct was attributable to a mental illness as defined. Therefore, the verdict in terms of s78 (6) would be inappropriate. The accused was found not guilty.

2.

Mental illness or defect o The concept of metal illness There is no scientific meaning for the term mental illness, it is rather a legal term used to describe certain mental states that excuse persons from criminal liability.

The test for mental illnesses extends to the range of illnesses that affect the cognitive (insight appreciating the wrongfulness of an act) and the conative (self control acting in accordance with appreciating the wrongfulness) capacities. Mental illness that impairs only the affective capacity, or which does not deprive the sufferer of insight or self-control, does not come within the concept of insanity. o Definition of mental illness S v Mahlinza

During the night, the accused, a devoted mother, took off her clothing and placed it on a fire. She then placed her baby and her daughter, aged 6, on the fire. The accused stood at the door of the kitchen to prevent the children from escaping. The baby was burnt to death but the 6 year old escaped with burns. The psychiatrist who examined her reported that she was laughing and generally was very rowdy. Her mood and behaviour was out of line with the injuries she sustained by her children. She could not give an account of herself or of her behaviour; she was disorientated and she had no insight into her condition. He diagnosed her to be in a state of hysterical dissociation. She was charged with murder but found to be insane and thus not guilty. Rumpff JA said that criminal capacity is a concept relating to the accuseds mental faculties at the time of the commission of the offence. When the issues of the accuseds mental faculties is raised, whether in respect of his trial or in respect of his criminal capacity relating to the offence, an investigation into his mental faculties is of primary and decisive importance. Should the enquiry show that the accused did not have criminal capacity, the necessity for an investigation as to fault in the technical sense and as to the voluntariness with which the offence was committed, falls away. Held it is impossible and dangerous to attempt to lay down any general symptom by which a mental disorder could be recognised as a mental disease. Each case must be treated differently and specifically. o Pathological This means that only those mental disorders which are the product of a disease will qualify as a mental illness for the purposes of s78. The condition from which the accused suffers must be a result of some known or identifiable disease of the minds.

Mental abnormalities that are not the result of disease but brought about by the temporary effect of external stimuli are not diseases. o Endogenous If it has been established that a person suffers a disease of the mind, the next step is to determine whether the disease originated spontaneously within the mind or whether its origin was due to the effect of external stimuli or the ingestion of substance which induce mental disorders. o Mental defect and mental illness Mental illness is a disease of the mind; mental defect is a mental state characterised by an intellect so abnormally low as to deprive the individual of normal cognitive or conative functions. Mental defect is usually more permanent. 3. Capacity for insight and self control o The mere fact that an accused is found to be suffering from a mental illness does not in itself establish lack of criminal responsibility. It must be established that the illness had the effect of rendering the accused (a) incapable of appreciating the wrongfulness of his act or of (b) acting in accordance with the appreciation of the wrongfulness of his act. o a) s78 (1)(a) The capacity to appreciate wrongfulness (insight) The test is whether the accused, because of mental illness, has been deprived of the capacity for forming a rational judgment as to the moral character of his act. i.e did the accused know that his act was wrong according to the ordinary standard adopted by reasonable men. If yes, then his state of mind is not so abnormal as to render him not deserving of blame, and the defence of insanity should not succeed. The notion of appreciate postulates not only a knowledge of the nature of an act, but also the capacity to evaluate the act, its implications, and its effects upon the accused himself and others who may be involved. Appreciation implies something in the nature of deliberate judgment or perception.

b) Capacity to act in accordance with such appreciation

A mental illness may not deprive a person of the capacity to distinguish between right or wrong, but may have the effect of depriving the person of the ability to control conduct according to this appreciation. The crucial issue under this section is determining what amounts to incapacity on the accuseds part to act in accordance with an appreciation of the wrongfulness of his act. For insanity to succeed as a defence it does not have to be shown that the accuseds conduct was involuntary in the sense that it was automatic or purely reflexive, for then the accused would be exempt form criminal liability. The determining factor is the question of capacity for self control, whether, in all the circumstances of the case, the effect of the insanity was that the accused could not resist or refrain from his act, or was unable to control himself. o S v McBride The accused killed his wife while suffering from endogenous

depression. The expert medical evidence was that the accused was capable of appreciation the wrongfulness of his act but that he was unable to act in accordance with an appreciation of the wrongfulness. Subsequent to the murder of his wife and after treatment, the accused had recovered from his mental illness. o Held the verdict is not guilty by reason of mental illness. The order was that the accused be detained in a mental hospital pending the signification of the decision of the State President. o S v Mnyanda The accused was convicted of murder. At the trial it was led that

established that he could be diagnosed as a psychopath. Finding that there were no justifying circumstances the court sentenced the accused to death. In an appeal. The accused argued that his pyschopathy should have been regarded as a mental illness and thus as an mitigating factor. o The mere fact that an accused can be regarded as clinically a psychopath is not a basis on which the accused must be found to be of diminished responsibility. Only when in respect of a particular misdeed, can it be said that the
9

psychopathic tendency was of such a degree as to diminish the capacity for self control to such a pint that according to a moral judgment, he is less blameworthy. Procedural Aspects The manner of determining whether an accused is insane is laid down in the CPA. When it is alleged that an accused is not responsible by reason of insanity, the court is obliged to order that an enquiry be held into the accused mental state. 78. Mental illness or mental defect and criminal responsibility. (1) A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable (a) of appreciating the wrongfulness of his or her act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission. (1A) Every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 78 (1), until the contrary is proved on a balance of probabilities. (1B) Whenever the criminal responsibility of an accused with reference to the commission of an act or an omission which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue. (2) If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79. (3) If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the

finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence. (4) If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused. (5) Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 enquired into the mental condition of the accused. (6) If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or intellectual disability not criminally responsible for such act (a) the court shall find the accused not guilty; or (b) if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty, by reason of mental illness or intellectual disability, as the case may be, and direct (i) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be (aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002; (bb) admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental care health user contemplated in section 37 of the Mental Health Care Act, 2002; (dd) released subject to such conditions as the court considers appropriate; or (ee) released unconditionally; (ii) in any other case than a case contemplated in subparagraph (i), that the accused

(aa) be admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002; (cc) be released subject to such conditions as the court considers appropriate; or (dd) be released unconditionally. (7) If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused. (8) (a) An accused against whom a finding is made under subsection (6) may appeal against such finding if the finding is not made in consequence of an allegation by the accused under subsection (2). (b) Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence. (9) Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the finding and the direction under that subsection and remit the case to the court which made the finding, whereupon the relevant proceedings shall be continued in the ordinary course. Onus of proof The SAL has adopted the EL: every man is presumed to be sane, and to posses a This CL position has been codified in s78 (1A) of the CPA (above). S78 (1B) emphasises the presumption of sanity and places the onus of proof on the

sufficient degree of reason to be responsible for his crimes, until the contrary if proved.

accused, who raises the defence of insanity, to prove this defence on a balance of probabilities. The rule is an exception to the general principle that in criminal cases the onus of proof rests upon the prosecution.

This section is designed to regulate matters relating to pathological mental

condition not non-pathological conditions, and furthermore, the original portion of s78(1) patently uses the phrase criminally responsible in the context of insanity. o The Legislature did not intend to override deceased of judicial precedent supporting placing at most no more than an evidential burden on an accused who raises non-pathological incapacity as a defence. o o It is not necessary for the accused to establish his insanity beyond reasonable Constitutionality of s78? doubt, proof on a balance of probabilities will suffice. The presumption of innocence, protected in s35(3)(h) of the Constitution and the right of equality before that law and the equal protection of the law would be infringed if the rule of law that places the onus in insanity cases on the accused. Solution it must be realised that the presumption of sanity has its origin in a system of law in which a clear distinction was not often drawn between a presumption which casts a burden of proof on a balance of probabilities onto the accused and a presumption which casts merely an evidential burden onto the accused. Insanity excludes the element of capacity which is a fundamental aspect of liability. Placing an onus of proving insanity on the accused would relieve the prosecution of establishing this element of liability and would infringe the presumption of innocence. There is no evidence that placing an evidential burden on the accused to adduce evidence of insanity would lead to fake defences of mental illness being raised with ease. This is the least intrusive approach on the presumption of innocence. The discharge of the onus of proof ensures that only persons who are really insane are sent to mental institutions, rather than persons who might be insane. Diminished Responsibility When, at the time of the crimes commission, the accuseds mental condition, although

abnormal, does not warrant acquittal, he will be legally responsible but a lesser punishment may be imposed on him. S78 (7) of the CPA enshrines the principle of diminished responsibility:

S78 (7) If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused. Diminished responsibility is usually the finding in cases of mental deficiency that do not

amount to legal insanity. The court will be guided by the medical evidence, as well as all the other evidence. C. Non-Pathological Criminal Incapacity Intoxication Intoxication, whether induced by the consumption of alcohol or the intake of drugs, may deprive a person of the capacity to appreciate the wrongfulness of his conduct or the capacity to act in accordance with such appreciation. RDL did not recognise voluntary intoxication as a defence and, as a general rule, neither o R v Bourke

did early SAL. This approach was dictated by public policy. The accused was charged with rape but was acquitted as a result of intoxication. He was, however, convicted of indecent assault. Held absolute drunkenness is not equivalent to insanity. The essential difference is that the drunk person, as a rule, voluntarily induces his condition, whilst the mentally ill person is the victim of a disease. It is therefore unreasonable to consider that the person who voluntarily becomes drunk is responsible for all such acts as flow from his having taken an excess of liquor. Held to allow drunkenness to be pleaded as an excuse would lead to a state of affairs repulsive to the community. It would follow that the regular drunkard would be more immune from punishment than the sober man. o S v Johnson Held the trial court held that the accused did not act voluntarily, as a result of the severe intoxication. However, he was declared guilty on grounds of policy , and that the fundamental requirement of voluntariness does not apply to self-induced intoxication, except where the intoxication causes a type of insanity.
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The decision of Johnson was unfortunate in that

policy consideration did not allow an accused who was deprived of criminal capacity as a result of voluntary intoxication to have a valid defence in accordance with the principles of SA criminal law. o S v Chretien While under the influence of alcohol, C had driven his car into a crowd of people standing in the street. One person was killed and five were injured. On charges of murder and attempted murder, the trial court found the accused guilty of culpable homicide but acquitted him of attempted murder. The issue was whether on the facts the judge was correct in law holding that the accused on a charge of attempted murder could not be convicted of common assault where the necessary intention for the offence charged had been influenced by the voluntary consumption of liquor. The court accepted that in his drunken state, the accused expected that the people would move out the way, and so there was some doubt as to whether he had the requisite intention for common assault. Friedman J held that he was bound by Johnson, but, by confining that decision to culpable homicide and categorising common assault as a crime requiring specific intent, he was able to avoid the effect of Johnson in respect of non-specific intent crimes. The judge thus brought to issue whether, subjectively, the accused had the requisite intention for common assault t the five injured persons. The States argument was that the trial court should have applied Johnson and found the accused guilty of common assault, even if he lacked mens rea on account of his intoxication. The majority of the AD concluded that even common assault requires an intention to assault and if this intention is lacking due to voluntary intoxication, there can be no conviction. It was found C had no intention. Rumpff CJ held that the rule in Johnson was juridically impure. He held that voluntary intoxication could be a complete defence to criminal liability, and stressed the importance of the degree of the accuseds intoxication. At the two extremes are the person who is dead drunk and the person who is slightly drunk. The latter would have no defence. The former would be acquitted if he was so drunk that his conduct was involuntary which

would also mean that he was unable to distinguish right from wrong or to act in accordance with that appreciation. Held voluntary intoxication was removed from the direct influence of policy considerations and placed it firmly on the basis of legal principle with the result that it can now affect criminal liability in the same way, and to the same extent, as youth, insanity, involuntary intoxication and provocation. Intoxication of a sufficient degree cant, therefore, serve to exclude the voluntariness of conduct, criminal capacity or intention. It has been accepted that a person who

voluntarily and deliberately gets drunk in order to commit a crime is guilty of committing the crime even though at the time he commits the prohibited act he is blind drunk and so acting involuntarily. The Criminal Law Amendment Act 1 of 1988 1 (1) Any person who consumes or uses any substance which impairs his faculties to appreciate the wrongfulness of his acts or to act in accordance with that appreciation, while knowing that such substance has that effect, and who while such faculties are thus impaired commits any act prohibited by law under any penalty, but is not criminally liable because his faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on the conviction of that act. (2) if in any prosecution for any offence it is found that the accused is nor criminally liable for the offences charged on account of the fact that his faculties referred to is ss (1) were impaired by the consumption or use of any substance, such accused may be found guilty of a contravention of ss (1), if the evidence proves the commission of such contravention. 2. Whenever it is proved that the faculties of a person convicted of any offence were impaired by the consumption or use of a substance when he committed that offence, the court may, in determining an appropriate sentence to be imposed that offence, the court may, in determining an appropriate sentence to be imposed upon him in respect of that offence, regard as an aggravating circumstance the fact that his faculties were thus impaired. Elements of the new offence

1. 2. 3. impairing faculties; 4. 5. so impaired. Result o crime. o

Consumption or use of any intoxicating substance by the accused; Impairment of the accuseds faculties (to appreciate the Knowledge that the substance consumed or used has the effect of Commission by the accused of any act prohibited by law whilst That the accused is not criminally liable because his faculties are

wrongfulness of his act or to act in accordance with that appreciation;

faculties were impaired; and

The accused becomes guilty of contravening s1 (1) and punishment is in terms of

the normal crime, even though technically they are not in conviction in terms of that S1 (1) creates a new statutory crime. This is because the accused cannot be found

guilty of the original crime because the intoxication affected his criminal capacity and thus could not be held liable in terms of that crime. o s1(1). o This section negates capacity. S1 (1) can be put forward as an alternative charge or one that stands alone. (e.g. a person is charged with theft or contravening s1 (1); or just charged with contravening

Problematic aspects of s1 (1) o The section does not specify voluntary consumption, but it is implied. A person whos drink has been spiked, or was forced to drink, would not be liable for contravening the provision. o The section only refers to the lack of criminal capacity what about involuntary conduct or intention? Chretien had criminal capacity, but he was acquitted of attempted murder and common assault because, in his drunken state, he thought that the persons in the road would move out of his way, and therefore there was reasonable doubt as to
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whether he possessed the required intention for these crimes. He would also escape liability under the Act because his intoxication not only led to lack of criminal capacity, but rather to lack of mens rea. o The way in which the onus works in this provision is that the state bears the onus to prove all the elements of the offence (even the 5 th element stating that the accused is not liable because his functions were so impaired), which is a departure from what it is usually required to do. S v Mbele The accused was charged with theft. The magistrate gave him the benefit of the doubt and held that the accused may have been intoxicated and thus was not criminally liable. However, he found the accused guilty of contravening s1 (1) of the Criminal Law Amendment Act. On review it was held that for a contravention of s 1 (1), the State was required to prove that the accuseds faculties were impaired a the time when he performed the act and that he was not criminally liable because his faculties were impaired and thus that he could not be convicted of contravening the act. Held according to the wording of the Act, the State must prove that the faculties were impaired at the time that the accused committed an act and that the person was not liable under the criminal law because his faculties were so impaired. It is insufficient if the State takes matters so far that there is doubt whether the accuseds faculties are impaired or were impaired to the necessary degree. Normally, on a charge of theft, the State must show there was capacity. Of the charge is in terms of contravention of s1 (1), the State has to prove that there was no capacity. Difficulty arises when the two offences are used in the alternative. The State could then fall between two stools. If the actual effect is that the State will not profit by using s1 (1) routinely as an alternative, and would only ask for conviction where clarity on the main charge is not present, then legal practitioners who have fairness and logical legal science in mind, can only welcome it. S v September

The appellant stood trial on charges of murder, assault with intent to do grievous bodily harm, theft and malicious injury to property. The trial court found that the appellant, at the time of the commission of the offences, was under the influence of liquor and possibly also drugs, that the appellant lacked criminal capacity because of his state of intoxication and that he was accordingly guilty of a contravention of s1 (1). On appeal, it was argued that the evidence was of such a nature as to cast doubt on the appellants criminal capacity and that the trial court correctly found that the appellant could not be convicted. It was however, further argued that positive proof of a lack of criminal capacity was absent and that the appellant could accordingly not have been convicted of contraventions of s1 (1). The appeal court set aside the convictions of s1 (1) and substituted them with the original charges.

Provocation and Emotional Stress o o o In SAL, provocation may be a complete defence and may: Exclude the voluntariness of conduct (leading to automatism) Exclude criminal capacity; and Exclude intention. Provocation and other emotional stress (non-pathological incapacity) are

although this is very rare;

treated in terms of the same capacity inquiry that pertains to insanity cases, but the onus of proof in non-pathological cases is not shifted onto the accused. o Therefore, the prosecution must prove every element of the offence, so it must prove that there was no provocation in order for the accused to be held liable. If there is evidence of provocation, the court must look at the impact it had on

a persons mind, not necessarily the nature of the provocation. Development of the defence in South Africa RL and RDL: o SAL: o Initially, following s141 of the Transkeian Penal Code of 1886, SA courts adopted Anger, jealousy or other emotions were not accepted as a defence, but were seen

as factors which might mitigate sentence if these emotions were justified by provocation.

the position that provocation could never be a complete defence to killing, at most it could be a partial defence homicide that would otherwise be murder could be reduced to culpable homicide if the person who caused the death did so in the heat of passion occasioned by sudden provocation. This depended on an application of the criterion of the ordinary persons power of control = objective test. o S v Mokonto This case changed the objective test to a subjective one. The accused had been convicted of murder. The court found that the accused had had a belief that the death of his two brothers had been brought about by the deceaseds evil

powers as a witch, and when he had confronted her she had said that he would not see the setting of the sun today. He struck her with a cane-knife almost cutting off her head. Holmes JA said the appellant was provoked to anger by the deceaseds threat, and that therefore the appropriate verdict should be one of culpable homicide not murder. Holmes JA looked at s141 of the Transkeian Code homicide which would otherwise be murder may be reduced to culpable homicide, if the person who causes death does so in the heat of passion caused by sudden provocation. Any wrongful act of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool and held that it does not correlate with the RDL notion that provocation is not a defence. Held the objective reasonable person criterion of the above section is not in harmony with the modern subjective judicial thinking. It is judicially recognised that intention to kill is purely a subjective matter. Therefore, since the test of criminal intention is now subjective, and since earlier cases of provocation applied a degree of objectivity, it may be necessary to consider afresh the whole question of provocation. Held on the other hand, the facts of a particular case might show that the provocation, far from negativing an intention to kill, actually caused it. The crime would then be murder, not culpable homicide. Held the test for intention being subjective, it seems to follow that provocation, which bears upon intention, must also be judged subjectively. In summation: i. ii. S141 of the Transkeian Penal Code should be confined to the territory for In crimes of which a specific intention is an element the question of the which it was passed. existence of such intention is a subjective one, namely, what was going on in the mind of the accused. iii. iv. Provocation is relevant to the question of the existence of such intention. Provocation, subjectively considered, is also relevant to mitigation.

The appeal was dismissed.

The courts have broadened provocation to include emotional stress and have begun to

distinguish between the concept of non-pathological incapacity and that of insanity / pathological insanity. o S v Laubscher

The accused was charged and convicted with the murder of his father-in-law, the attempted murders of his mother-in-law, his sister-in-law, his wife and his son. His defence was that he acted involuntarily and lacked criminal capacity at the time of the commission due to a total psychological breakdown or disintegration of his personality of a temporary nature. In order to address the issue of the appellants mental faculties at the time of the crime, the court had to look at the role of the defence in SAL. To be criminally liable, a perpetrator must at the time of the commission of the alleged offence have criminal liability. The doctrine of criminal capacity is an independent subdivision of the concept of mens rea, therefore, to be criminally liable, a perpetrators mental faculties must be such that he is legally to blame for his conduct. The court set out the 2 psychological characteristics of criminal capacity: 1. 2. Ability to distinguish right from wrong, and to appreciate the Capacity to act in accordance with the appreciation and to refrain wrongfulness of an act. from acting unlawfully. In the present case, the defence of a total psychological breakdown or disintegration of personality of a temporary nature relates to a non-pathological condition with the result that it concerns non-pathological incapacity. Where a defence of non-pathological incapacity succeeds it is then contended that the accused is not criminally liable and that he cannot be convicted of the alleged offence. He must then be acquitted and cannot be declared a State patient because he does not suffer from a mental illness/defect of a pathological nature. The appellant was an emotionally sensitive 23 year old 4 th year medical student with the intelligence of a genius. The appellant and his wife were married young when she was pregnant. They struggled financially as he was still a student, and her parents contributed

R80 per month to their rent, giving them an opportunity to meddle in their lives. The appellant and the parents-in-law did not get along and he even feared his father-in-law, and things did not get any better when the baby was born. The parents took the wife to their farm and made arrangements to christen the baby without the appellants consent. The wife did not return to the appellant afterwards, and upon reaching majority began instituting divorce proceedings. One weekend the appellant made arrangements with his wife to go away to his parents home for the weekend with the child and to spend time together. She agreed, but when he arrived at the farm to fetch them, she had apparently changed her mind. He then made other arrangements to see his family the following week. He was travelling with a loaded gun, as he was driving alone, and arrived at the farm to be told that he would not be leaving with his wife and child. He left, went to a hotel and checked in. He misspelled his name and other words on the forms and did not have dinner, but he did have rum and coke. Then he went back his in-laws house and demanded to see his child. His mother-in-law told him he couldnt and then the appellant suffered from amnesia. He was woken up the following morning in hospital with no recollection of what he had done. The appeal court agreed with the convictions of counts 1-4, but held that as regards to count 5 (attempted murder of his child) the State did not prove beyond a reasonable doubt that the appellant had the necessary intention in the form of dolus eventualis to kill his child, especially in view of the fact that the whole object of his visit to the farm that evening was to collect his child. As regards to sentence, the court held that the appellant had without doubt suffered from severe stress, and so his sentence was mitigated. Provocation or emotional stress can now afford the accused a possibility of a complete

acquittal if sufficient, compelling evidence is shown in his favour, thus creating a reasonable doubt regarding criminal capacity. o S v Wiid The appellant was charged and convicted with the murder of her husband. She was sentenced to 5 years imprisonment suspended in its entirety on certain conditions. The appellant had fired 7 shots at the deceased, 3 hitting him fatally. She stated that the relationship had reached breaking point and she was in a state of extreme emotional

tension. She said that he had threatened to kill her, and she knows that she shot her husband, but does not remember doing it. She claimed that it was an involuntary act and she could not exercise any self-control, due to a temporary lack of criminal capacity, temporary because she did not suffer from any permanent mental illness. Goldstone AJA acknowledged that Joubert JA in Laubscher found it unnecessary to decide whether the onus on the case of non-pathological incapacity rests on the accused or on the State. He stated that it was settled in S v Mahlinza, where Rumpff JA said although the State must prove the elements of the offence, there is a presumption that an accused had criminal capacity. In cases of a lack of criminal capacity due to insanity, the onus, on a balance of probabilities, is on the accused. In cases of a lack of criminal capacity due to a mental disorder not caused by insanity, the finding must be made in the accuseds favour should there be reasonable doubt regarding the cause of his incapacity. The court emphasised the need to take the facts of each case into careful consideration. In this instance, the couple was married for 32 years with two children. The daughter was mentally retarded and the son was involved in an accident which left his right side paralysed and his speech impaired. The appellant took care of the children without any assistance from her husband, who had throughout the marriage had affairs. All this caused the appellant to be in a tense emotional state eating very little, taking tranquilisers and hormone tablets. Days before the shooting, the deceased admitted to having an affair. On the day of the shooting the deceased left the house and the appellant was convinced he went to his mistress and she was devastated. She called a friend over and cried on her shoulder. The husband returned and he denied he had been with his mistress. When they were having dinner they started fighting and he seriously assaulted her, breaking her nose and cracking her teeth. When the friend went to get a cloth to clean up the appellant, she heard shots and went to the couples bedroom where the appellant had shot her husband dead. The appellant claimed she could not remember all the events of that night. A psychologist testified that when the offence was committed the appellant might well have been unable to distinguish between right from wrong.

The trial court held that the accused chose not to remember bits of the event. The appeal court said that it would be very dangerous to reject the appellants version purely because it differed from the fine detail of the evidence given by the friend. Held first, the trial court was correct in finding that there was a reasonable possibility that when the appellant fired the shots she was not fully conscious. Secondly, it is possible that the friends shout that the deceased was dead, and the shock of the shooting itself, could have been enough to bring the appellant to her senses and to realise what she had done. Held if all the facts are taken into consideration, there is a reasonable doubt as to whether the appellant acted voluntarily. A conscious and deliberate desire to kill the deceased cannot be reconciled with the appellants personality and character. Her love for the deceased was still strong, regardless of his infidelities. The fact that she fired 7 shots bears witness to the fact that she had lost her self control, and her memory was sporadic and incoherent. There is no psychological evidence to suggest that this phenomenon was in conflict with the absence of either the capacity to appreciate the wrongfulness of her conduct or of the capacity to act in accordance with such appreciation. Held there is room for doubt as to whether the appellant acted with criminal capacity at the time of the commission of the offence. She ought to be given the benefit of that doubt. The accused was found not guilty and discharged. o S v Potgieter Appellant was convicted of murder and appealed against the conviction and sentence. Her defence was that she acted in a state of sane automatism. She was married with 3 children, but after meeting with the deceased the marriage broke up and she and her children moved in with the deceased. Despite the deceaseds assaults on her she continued to love him and hoped his behaviour would improve. They had lived together for 6 years and had a child together. On the day of the deceaseds death the appellant was severely assaulted by him and was told to leave the house with her children. The deceased then left the house and the appellant called a locksmith to open the safe where the deceased kept his pistol. The deceased testified that she woke up during the night hearing her baby crying and found the deceased sitting in the lounge watching TV. She asked him to turn the volume down and returned to feed her baby. When she reached her

room the deceased arrived at the doorway, grabbed her by the arms and threw her against the wall. Her last recollection was of him shouting something at her as she saw his blurred image moving away form her towards the bedroom window. She remembered nothing further until she heard a loud bang. She realised that she had the pistol in her hand and must have fired a shot. She noticed the deceased lying on his back. When the police arrived he was found lying naked in the bed with a duvet covering the lower half of his body. The trial court rejected her defence of sane automatism. The appeal court asked the crucial question of whether the pistol was within reach or she had to fetch it from somewhere. It stated that if the gun was within reach then she could have easily acted in automatism. The appellant, however, could not furnish any reason for leaving the handbag in the childs room or for putting the pistol on the vanity slab. The psychiatrist said that at that stage as a result of tension, stress and fatigue she was not acting rationally. However, she went downstairs, made the baby a bottle, offered the deceased coffee and then took a bath. Held the appeal court agreed with the conclusion of the trial court that the deceased was probably asleep when he was shot, due to the position he was found in. the court held: 1. 2. described; 3. 4. 5. the pistol was not taken from the safe because she was leaving for Durban the pistol when it was used that night was not taken from the vanity slab; the deceased was asleep at the time the shot was fired or, if not asleep, had the next morning, and it was not removed openly in the presence of the locksmith; the appellant was an untruthful witness; she had been assaulted that day, but maybe not the way in which she

not assaulted the appellant as described by her seconds before lying down. Held the appellants account of what took place cannot be reasonably true and the trial court was correct in rejecting it as false. Evidence showed her actions were not of routine ore automatic nature: she had to locate the pistol at a place where it was not normally kept, i.e. the vanity slab; she had to remove it form the holster, which was a tight fit; she had to cock the pistol and release the safety catch; and then, in relative darkness, she had to aim at the target on the bed.

Turning Point (NB) The debate on provocation: In S v Eadie, the accused killed the deceased in a road rage. He had, on that day, consumed a considerable amount of alcohol and was harassed by the deceased. The two cars stopped at a set of traffic lights, and the accused got out of his vehicle with a hockey stick in hand. As he approached the other vehicle, the drivers door opened. The accused struck at it, breaking the stick in half. He kicked the driver with both feet and punched him in the head. He pulled him out of the vehicle and stamped on his face with the heel of his shoe. The deceased died as a result of the assault. The defence was raised of temporary non-pathological criminal incapacity, resulting from a combination of severe emotional stress, provocation and a measure of intoxication. The court a quo rejected this. The main issue on appeal was whether the appellant lacked criminal capacity at the time that he had killed the deceased. When an accused person raises a defence of temporary non-pathological criminal capacity, the State bears the onus of proving that he or she had criminal capacity at the relevant time. There is a natural presumption that, in the absence of exceptional circumstances, a sane person who engages in conduct which would ordinarily give rise to criminal liability does so consciously and voluntarily. It was not in dispute that, at the time of the attack, the accused was subjected to a number of stressors. The views of three expert witnesses were provided: # One assessed the appellant as someone who bottled up his emotions and who had personality problems. Accepted that the intake of alcohol during the time preceding the assault on the deceased played some role in the appellants conduct. The appellant approached the deceaseds car with the intention of perpetrating a violent act: his actions were rational, purposeful and goaldirected. Thought it relevant that he had a full recall of the events in question yet stated that he

was disoriented after the event. Stated that the question of whether or not the appellant had criminal capacity at the relevant time was debatable, it is clear that the appellant exercised poor impulse control. Did not accept that the appellant lacked criminal capacity when he assaulted and killed the deceased. o Of the view that the appellant was able to appreciate the wrongfulness of the acts perpetrated by him and to act accordingly. Saw no difference in a defence of sane automatism and the defence asserted in the present case. A person who acts in a state of sane automatism would typically have been subjected to a great deal of stress producing a state of internal tension building to a climax which in most cases is reached after the person concerned has endured ongoing humiliation and abuse. Actions are unplanned and one is unable to appreciate surrounding events. Acts in this state may appear purposeful but should typically be out of character. If the appellant did not know what he was doing his actions would have been less goaldirected. Common for people to lose their temper and to commit regrettable acts when they should have known better. The appellant did not show any signs of posttraumatic stress. The appellant would have been more convincing had he not made an attempt to deceive the police. The appellant was subjected to provocation and other stressors but faced no more than scores of people who do not resort to this kind of behaviour. Temper and rage disinhibits people but does not rob them of control. o Appellants description of the sensations experienced by him during the act is indicative of a dissociative state which led to his inability to control his behaviour. The appellants purposeful, goal-directed and well co-ordinated behaviour masks the fact that his cognition had been disturbed. In that given the stressors, he reached a point where his emotional state was such that his actions were involuntary. He lost his power to make decisions from the time that the hockey stick broke. From that moment he was unable to change his decision. The assault flowed from the appellants heightened emotional state, not from a conscious decision. However the appellants detailed description of the assault negatives any suggestion of automatism.

The court a quo held that the appellant did not lose control: he simply lost his temper and had the necessary intent to kill. On appeal it was held that there is a great deal of confusion about the proper application of the test for criminal capacity. Criminal incapacity due to mental illness is classified as pathological incapacity while factors such as intoxication, provocation and emotional stress are termed as non-pathological incapacity. Persons who were so intoxicated that their acts were merely uncontrolled muscular movements are not criminally liable, because their acts are not recognised as such for purposes of criminal liability and that those who committed acts which were more than mere uncontrolled muscular movements but were so intoxicated as not to appreciate what they were doing, or were unable to appreciate the difference between rights and wrong would lack criminal capacity and would accordingly escape criminal capacity. The court considered judgments which related to non-pathological criminal capacity. In order for an accused to escape liability on the basis of non-pathological criminal incapacity, he has to adduce evidence, from which an inference can be drawn that the act in question was not consciously directed or that it was an involuntary act. The courts have approached the defences of non-pathological criminal incapacity with caution and have set out 3guidelines to consider: 1. 2. 3. The accuseds actions before, during and after the event. Whether there was planned, goal-directed and focused behaviour. Whether an accused was truly disorientated.

A detailed recollection of events militates against a claim of loss of control over ones actions. Careful in confusing loss of temper with loss of control. In assessing the accuseds evidence about his state of mind, one has to weigh it against his actions and the surrounding circumstances and consider it against human experience, societal interactions and societal norms. Automatism vs Non-Pathological Criminal Incapacity Must decide whether the two defences are identical or distinct. It was held that there was no distinction between sane automatism and non-pathological incapacity due to emotional stress and provocation. However the second-leg of the enquiry should not be

neglected. When it has been shown that an accused has the ability to appreciate the difference between right and wrong, in order to escape liability, he would have to successfully raise involuntariness as a defence. The result is the same if the accuseds defence is that his psyche had disintegrated to such an extent that he was unable to exercise control over his movements and that he acted as an automaton. Clear that the state has to prove that the acts which are the basis for the charges were consciously directed by him. The acts must not have been involuntary. Voluntary conduct must be regarded as conduct controlled by the accuseds conscious will. The insistence that one should see an involuntary act unconnected to the mental element is an overrefinement. It may be difficult to visualise a situation where one retains the ability to distinguish between right and wrong yet lose the ability to control ones actions, it appears notionally possible. Distinguishing the two theories would suggest that someone who gives in to temptation may be excused from criminal liability because he may have been so overcome by the temptation that he lost self-control. No self-respecting system of law can excuse persons from criminal liability on the basis that they succumbed to temptation. One has free choice to succumb to or resist temptation. It one succumbs one must face the responsibility for the consequences. Mitigating factors should be taken into account in that when an accused acts in an aggressive goal-directed and focused manner, spurred by anger or some other emotion, whilst still able to appreciate the difference between right and wrong and while still able to direct and control his actions, it stretches credibility when he then claims, after assaulting or killing someone, that at some stage during the directed and planned manoeuvre he lost his ability to control his actions. Subjective vs Objectivity Council for the appellant contended that a purely subjective test should be applied when the question of incapacity is raised. Should the law include some objective criterion in the capacity enquiry? The problem does not lie in the subjective aspect of the test but in its application. The court held it to be justified to test the accuseds evidence about his state of mind, not only against his prior and subsequent conduct but also against the courts experience of human behaviour and social interaction. This is an acceptance method.

Sane people temporarily losing cognitive control, due to a combination of emotional stress and provocation, resulting in automatic behaviour is rare. Accused persons will still persist that their cases meets the test for non-pathological criminal incapacity. It is common cause that the appellant did not at the relevant time act in a state of automatism. The facts are such that he should be held responsible for his actions. Right to consider the appellants goal-directed and focused behaviour, before, during and after the incident as indicating presence of mind. The appellant was angry with the deceased and intended to vent that anger. All his actions were performed with presence of mind. Hard to believe that his directed and planned behaviour was suddenly interrupted by a loss of control over his physical actions when those actions are consistent with the destructive path he set out on when he was admittedly conscious. There was no sign of true disorientation subsequent to the event. His deceitful behaviour immediately after the event should count against him. His previous encounter, in 1990, played no part in his conduct. The appellant lost his temper and not the control of his actions; he had the necessary intent to kill. Murder on the facts can only be attributed to road-rage. This is obviously not premeditated. It arose directly from the fact that the accused believed the deceased had angered him. A cold-blooded and wholly unnecessary killing which cannot be tolerated. There is no doubt that the accused was provoked and that the deceased behaved badly. However, an accused can only lack self-control when he is acting in a state of automatism. It is by its very nature a state that will be rarely encountered. APPEAL DISMISSED. The test provocation and emotional stress is subjective. However, the courts infer aspects of an objective nature to help in the analysing of the defence of non-pathological criminal incapacity. Comment by Burchell: 427 451.

5. Fault

General Principles of Fault (Mens Rea)

This deals with an accuseds mental or psychological attitude towards the unlawful act. It is the legal blameworthiness of the reprehensible state of mind or careless conduct of a criminally accountable person who has acted unlawfully. Actus non facit, nisi mens sit rea = the act is not wrongful unless the mind is guilty. There are two forms of fault, namely: Intention (dolus); and Negligence (culpa)

Fault in either form must exist in the commission of the crime. The importance of fault in determining ones criminal liability is that: The Golden Rule: Fault must exist in respect of each and every element of the crime with which the accused has been charged. Fault and unlawful act must be simultaneously. All common law crimes require fault. Human beings have free will and thus are able to plan and anticipate Fault ensures that the criminal law does not punish people who neither

consequences of their conduct. planned nor anticipated consequences of their actions.

1. Elements of Intention a) b) c)

Intention

This is when the accused intentional commits a crime knowing it is unlawful. A direction of the will towards performing the act Knowledge of the definitional elements of the crime, and Knowledge of unlawfulness of the conduct.

In terms of intention as a whole, there Is an element of deliberateness, and conduct that is foreseen.

3 Forms of Intention Dolus directus Dolus indirectus Dolus eventualis

S v De Bruyn The court had convicted the accused of the crime of murder and the question arose whether extenuating (mitigating) circumstances were present. The fact that the accused did not wish to kill cannot for itself warrant a conclusion that such circumstances were present but such fact is a relevant factor in considering whether on all the facts of the case such circumstances were present i.e. whether the fact that the accused acted with dolus eventualis could be considered in mitigation of punishment With dolus directus, the accused directs his will to compassing the death of a person. He means to kill. The sole characteristic of this form of dolus is actual intent to kill. Its methods are legion, but poisoning is an example. With dolus eventualis, the accused foresees the possibility, however remote, of his act resulting in death to another, yet he persists in it, reckless whether death ensues or not. The characteristics of this form of dolus are: Subjective foresight of the possibility, however remote, of his unlawful conduct causing death to another. Persistence in such conduct, despite such foresight. An insensitive recklessness (which has nothing to do with culpa). The conscious taking of the risk of resultant death, not caring whether it ensues or not. The absence of actual intent to kill.

A. Dolus Directus This means direst intention in its ordinary grammatical sense. It is the directing of ones will to achieve the act or result. The accused is aware of his

intention; even if the chance of the result occurring is small, it still holds. Thus the accuseds resultant unlawful act or conduct was the accuseds goal.

B. Dolus Indirectus This means indirect intention. The accused sees the unlawful act as certain as he goes The prohibited act or consequence is not the accuseds main goal: but he foresees the

about achieving his goal. unlawful act or consequence as certain or as substantially certain or virtually certain. Example: A shoots B, who is behind a window. As main aim was to shoot B but the R v Kewelram

window broke

The accused set fire to certain stock which was in a store. His objective was destruction of the stock in order to obtain the insurance money (dolus directus). However, he foresaw the destruction of the store as a substantially certain, or inevitable, consequence of the burning of the stock (dolus indirectus). He was however convicted of arson. The case for the crown was that he fired his stock in order to obtain the insurance money in fraud of the company; that as a natural consequence the store was ignited, and that under all the circumstances an intention to burn the store and injure the owner could properly be inferred, so as to establish the charge laid. On appeal it was held that the accused set fire to his stock with the object of defrauding the insurance company; that the fire damaged the building and that the accused must have known and realised that that would be the result. The accused must have realised the consequences of his action. Realising that the fire must spread from the stock to the building, he, for his own fraudulent purposes, set fire to the stock. The inference of a wrongful intention to burn the store was sufficiently justified. C. Dolus Eventualis This is legal or constructive intention. It deviates from the ordinary sense. The accused here directs his will towards one event or result i.e. to achieve X; but

foresees that if he wants to do this, another event may ensue i.e. Y; nevertheless he proceeds with his conduct.

The accused foresees that possibility that the prohibited consequence might occur in

substantially the manner as that in which it may actually does occur, and accepts this possibility into the bargain. Example: A wants to rob a bank and goes in there with a gun. B gets killed in the process. As main aim was to rob the bank. R v Jolly

The accused had unlawfully and deliberately derailed a train and had been convicted of assault with intent to murder. No one was seriously injured in the derailment. Whether there was an intention to commit murder. It was argued for the accused that there was no desire to injure anyone, especially since the accused had chosen a spot where the train was moving slowly up a rising gradient with banks on either side of the railway line. The court held that the derailment of the train, even upon a slightly rising grade must be attended by terrible possibilities of danger to those travelling upon it. Jolly recognised that, for he said in his evidence that he contemplated risk to life. But he and his associates were content to cause that risk. A person acts with dolus eventualis if the unlawful act or result is not his main aim but o o Requirements 1. Foresight Possibility Correlation between foreseen and actual manner of consequence occurring Recklessness Foresight He subjectively foresees the possibility that, in striving towards his main aim, the He reconciles himself to this possibility (or he is reckless as to this possibility).

unlawful act or result may ensue and

The focus here is on the consequence or circumstances foreseen by the accused. The

event is not planned or the aim of the accused but the ensuring result can be expected to come about. The test for intention is subjective. This may be satisfied by inferential reasoning. The inference must be the only one that can reasonably possibly be drawn from the proven facts i.e. beyond reasonable doubt. It takes into account the subjective mind of the accused and not that of a reasonable person. Test: Whether the accused, in his mind, saw this to be a possibility or ought to have seen

and in other words should have foreseen; thus is taken to have foreseen (inferential reasoning). R v Nsele

While M was sitting in a tearoom he overheard the appellant telling P, whom appellant knew was armed with a loaded revolver, that he was not going to walk to E on foot; that they should burgle some place and get money to get to their destination. P and appellant left and entered a fruit shop where the deceased was carrying on business. Appellant was seen to emerge from the fruit shop and looking up and down the road several times. He then reentered the shop when P shot the deceased. Things containing cash had been removed. The trial Court held that it was obvious that if necessary the revolver would be used. On an appeal from a conviction for murder, Held, that it had been proved by inference that the appellant knew that there was a danger that the revolver would be used to kill or incapacitate the deceased or any person who might attempt to thwart their design and that nevertheless he was ready to associate with P in the enterprise. Held, the inference was inescapable that the appellant must have foreseen the possibility even the probability - of P using the revolver if any person, whose premises they entered for the purpose of stealing or robbing, showed unexpected reluctance to part with his money or tried to impede their escape: that he was reckless whether or not this foreseen possibility materialised. S v Sigwahla

In determining whether, where an accused is convicted of murder, there are extenuating circumstances, trial Courts, in their conspectus of possible extenuating circumstances, should
1

not overlook the fact (if it be such) that it is a case of dolus eventualis . While it cannot be said that this factor must necessarily be an extenuating circumstance, in many cases it may well be so, either alone or together with other features, depending on the particular facts of the case. In considering the relevance of intoxicating liquor to extenuating circumstances the approach of a trial Court should be one of perceptive understanding of the accused's human frailties, balancing them against the evil of his deed. The requisites of an 'intention to kill' on a charge of murder redefined. A trial Judge is not partial if, although now and again manifesting a tendency to descend into the arena, this being attributable to his honest zeal to do justice between the parties, it cannot be said that he breached the canons of judicial conduct to the extent of vitiating his appraisal of the demeanour and credibility of the witnesses. The duty of a judicial officer in relation to impartiality and not descending into the arena restated. The inference must be the only one that can reasonably possible be drawn form the proven facts. Thus supporting the principle that people should only be held liable for consequences they intend. 2. Possibility Dolus eventualis is founded upon the principle of inevitability of the occurrence of the

consequence. What forms probability of the occurrence should be regarded as having established the dolus eventualis: Certain/ probably/ possibility. R v Horn

On a charge of murder, there are two essential elements in the enquiry as to whether the intent to kill was present or not, namely; I. An appreciation by the wrongdoer that his act entailed a risk to life; and II. Recklessness on his part, whether death ensured or not. The onus lies upon the crown to prove both elements and the enquiry will always depend upon the particular facts of the particular case. The accused, an assistance stock-inspector and an overseer of a farm, after spying two native women stealing from the land on a farm which they did not belong had run to catch them and asked them who they were and what they were doing in the field. When no response was

forthcoming, they become impatient and struck one of them, the deceased, across the shoulder with a whip he was carrying. The two women then started to run from him, they told them to stop but they did not. When the deceased had failed to stop, he produced a pistol which he carried, shouted he was going to shoot and then did, to frighten her but killed her in the process. The trial court found that at the time, the accused had had intent to kill and extenuating circumstances having been found. He was sentenced accordingly. On appeal, however, the court held that the accused had been entitled to arrest the deceased and to take steps to prevent her from escaping and was entitled to fire a shot to frighten her to stop the flight. Killing had not been a natural and probable consequence of the accuseds act. Furthermore, seeing that the accused had not fired with the intent of harming the deceased, the intent to kill had not been established beyond reasonable doubt. It held that a conviction of culpa should be substituted as there was evidence that he would have failed in his duty as overseer had he not taken steps to arrest the deceased. The sentence was altered to a fine and suspended sentence. Degrees of possibility: o R v Be Bruyn (Remote Possibility) see above pg. 110. o S v Shaik Although the principles relating to dolus eventualis are clear, their application may raise problems. In regard to how clear the perception of the possibility of death or serious injury resulting from an assault has to be, no doubt the more remote or unlikely the possibility of injury, the more difficult it will be for the Court to draw the inference that the accused foresaw what might happen, but legal intention is present if the accused "foresees the possibility, however remote, of his act resulting in the death of another". In other words, if an accused admits that he foresaw a possibility of injury or worse, or there is other direct evidence to that effect, or if the facts are such that an adverse inference must be drawn, it will not assist the defence to show that the risk of injury or worse appeared unlikely, highly improbable or remote. When two or more people make an agreement to use such force as is necessary against anyone in order to accomplish their criminal plan or to avoid identification or arrest, one may play an active role whereas another may play a passive or a less active role, but,

once an agreement of that kind is made, the act of one becomes the act of the other if that act is done in pursuit of a common design. S v Beukes (Reasonable Possibility)

The accuseds conspired to rob a caf. Beukes drove to the caf. Beukes and the second accused remained in the car while the other entered the caf with a loaded gun. The two in the car knew this as well as the fact that he planned to shoot anyone who obstructed him. The accomplice was standing by the counter, a police entered the caf, a struggle ensued and both the police and the accomplice were fatally shot. They heard the shots as they drove away from the scene of the crime. They were convicted of the murder of the policeman. In an appeal, the AD dismissed their appeals against their convictions for attempted robbery and murder. With regards to the murder charge, it was contended that although the appellants had foreseen the consequence (the death of the policeman); they had not reconciled themselves to that possibility. Whether that a perpetrator has reconciled himself to a foreseeable result or was reckless as to whether it ensued or not? A court therefore draws an inference regarding an accuseds state of mind from facts indicating, objectively viewed, a reasonable possibility that the result would ensue. If such a possibility does not exist it is simply assumed that the perpetrator had not absorbed the result into his consciousness. If so, it is usually inferred, from the mere fact that he acted, that he had reconciled himself to the result. It would appear that the second element is normally only satisfied where the perpetrator has foreseen the result as a reasonable possibility. Is it therefore still necessary to formulate two criteria in respect of dolus eventualis or will the sole requirement that the perpetrator envisaged the result as a reasonable possibility suffice? Yes it is still useful. Suppose A, B, C and D conspire to commit a robbery. A, the leader, and D are to wait in a car whilst B and C undertake the robbery. A searches B and C to ensure that they are not in possession of any weapons, especially since he knows that they readily resort to the use of knives. Satisfied that nobody will be killed, A conveys B and C to the premises in question, D informs A that they had concealed knives on the premises earlier that day. A now foresees as a reasonable possibility that they might kill somebody who offers

resistance to the robbery. If A does not take any steps to avoid this result, he is reckless in respect thereof. Beukes had known that his accomplice approached the caf carrying a loaded firearm. They were also aware that he had indicated earlier that he would shoot anyone who offered resistance during the proposed robbery. They had thus foreseen as a reasonable, if not stronger, possibility that he might kill somebody. They nevertheless co-operated and they were accordingly reckless in respect of the result. 3. consequences occurring Does the accused have to foresee the precise, or even the general, manner or way in The way in which the consequences happened must correlate to the way in which the Correlation between foreseen and actual manner of the

which the consequence occurs? accused possibly foresaw it happening. S v Goosen (criticized) Burchell 474-476

The accused had participated in a robbery in which the victim had been shot and killed. The accused had foreseen the possibility that one of his fellow robbers might intentionally shoot and kill the deceased. The fellow robber had involuntarily pulled the trigger of hid firearm, thus unintentionally causing the death of the deceased. The trial court convicted the accused of the murder of the deceased and sentenced him to death. On appeal, the AD found that the accused could not be held guilty of murder and set aside the conviction and sentence, substituting a conviction of culpable homicide. Whether the appellant had foreseen that the deceased could die as a result of the involuntary act? If not, whether it was reasonably foreseeable that the deceaseds death could have been caused thereby The court held that there was a substantial difference between the actual and the foreseen manner in which the death was caused. That the accused had not foreseen that the death could be caused in this way. It was stated that only a material deviation excludes intention i.e. where the actual causal sequence differs from the sequence contemplated to such an extent that it cannot reasonably be said that the accused had envisaged this. It offends the sense of justice to conclude that the accused had caused the result intentionally.

Dolus is lacking where an accuseds foresight of the causal sequence differs markedly from the actual causal sequence. Thus intention must be aimed at bringing about the result in materially the same way as it in actual fact occurs. The appellants foresight of the causal sequence which could lead to the deceaseds death differs materially from the actual events. Burchell criticism: for intention in the form of dolus eventualis to exist, there not only has to be at least foresight of the possibility of the consequence occurring, and the accused proceeding with his conduct despite such foresight, but there has to be a substantial correlation between the foreseen way in which it did occur. The appellant foresaw the fun held by another in the gang being discharged intentionally, but he did not foresee, or it had not been proved beyond reasonable doubt that he did foresee, the gun going off accidentally. Van Heerden too the approach that where the accuseds aim and objective was to bring about the death of the deceased, his mistake as regards the actual way in which death occurs would be irrelevant. The judge nevertheless accepted that even where dolus directus was present there might be exceptions to this rule, however, referring to s v Nkombani, Van Heerden held that where dolus eventualis is alleged, the accuseds foresight of the way in which death might occur must not differ markedly from the actual way in which death occurs. The theory of mistake as regards the causal sequence, which is an aspect of mens rea, may thus be an important limiting device in cases of common purpose liability, excluding liability for murder where death was foreseen by the participants in a common purpose, but death in fact occurred in an unexpected way. The Goosen rule is a very powerful alleviation of the harshness of the common purpose rule. If the death was foreseen but actually came about in a markedly different or bizarre way to the way in which it was foresee, then the accused participant could not be convicted of murder resulting from the common purpose. 4. Recklessness Reconciling oneself to the ensuing result The accused must reconcile himself to the possibility that the result may follow. The

accused in this regard is not deterred by the prospect of the forbidden result flowing from his act. This is a volitional element of dolus eventualis. He reconciles himself that the end result will follow.

It must be inferred from an objective assessment of the evidence i.e. Whether the

accuseds state of mind was such that he foresaw a reasonable possibility that the result would ensue. o Subjective test but objective elements would have to be used to establish an inference from the facts. It is argued that this requirement is redundant in that if an accused foresaw an event and went ahead and did it, he has reconciled himself to it and as such there was no point in trying to establish this again. S v Ngubane (RECKLESSNESS) (NB)

The accused appeared on a charge of murder. He pleaded guilty to culpable homicide which was accepted by the state. The appellant, somewhat under the influence of liquor, without premeditation and as a result of some provocation, stabbed the deceased. The trial court held that the accused had acted with dolus eventualis and thus convicted him of murder. That he foresaw the possibility of death ensuing and that he killed intentionally. He appealed against the decision questioning whether the court had acted irregularly in adjudicating on a charge of murder where he had pleaded guilty to culpable homicide. The AD held that the inference drawn by the trial court that the accused had foreseen the possibility of death ensuing and that he had killed intentionally (dolus eventualis) did not preclude the matter of a conviction of culpable homicide. The conviction was altered to one of guilty of culpable homicide and the sentence was accordingly reduced. The preponderance of judicial opinion is that on a charge of culpable homicide the accused may be convicted of that offence despite the killing being found to be intentional. However, majority of writers maintain the contrary. The main bass for the view that a killing cannot be both intentional and negligent appear to be the following; a) Logically impossible to conclude that a man may at one and the same time foresee certain consequences and also fail to foresee those very consequences. b) Dolus and culpa are incompatible concepts. The impossibility of foreseeing and not foreseeing at the same time. Dolus postulates foreseeing, but culpa does not necessarily postulate not foreseeing. A man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing, e.g. by unreasonably

underestimating the degree of possibility or unreasonably failing to take steps to avoid that possibility. Conscious negligence is not to be equated with dolus eventualis. The distinguishing feature of dolus eventualis is the volitional component: the agent (perpetrator) consents to the consequence foreseen as a possibility, he reconciles himself to it, he takes it into the bargain. It is the particular, subjective, volitional mental state in regard to the foreseen possibility which characterises dolus eventualis and which is absent in luxuria (conscious negligence). In principle it should not matter in respect of dolus eventualis whether the agent foresees (subjectively) the possibility as strong or faint, as probable or improbable, provided his state of mind in regard to that possibility is consenting, reconciling or taking into the bargain. Conscious negligence clearly establishes that foresight per se does not exclude negligence. Recklessness means the taking of a conscious risk. The accused foresees the consequences in question as a real possibility and yet persists in his conduct irrespective of whether it does result or notit seems in every situation where the accused does foresee the consequence as at least a real possibility and nevertheless persists in his conduct irrespective of whether it results or not, he does consciously take the risk of it happening. If the agent persists in his conduct despite foreseeing a consequence as a real or concrete possibility, the inference could well be drawn that he reconciled himself to that consequence, that he was reckless of that consequence. Whether dolus does not exclude culpa because they are incompatible concepts. Dolus and culpa are different concepts. The difference is so fundamental that it may be conceded that the two concepts never overlap. It may also be conceded that, at least theoretically, proof of dolus does not necessarily amount to proof of culpa. Whether proof of dolus necessarily excludes culpa? Dolus connotes a volitional state of mind. Culpa, it would seem, may entail no state of mind at all. Culpa is constituted by conduct falling short of a particular standard, viz that of the reasonable man; failure to measure up to a standard of conduct. Difficult to accept that dolus excludes culpa. If the objective test for culpa is applied, the question is whether the conduct of the agent measured up to the standard of the reasonable man in the circumstances; if the subjective test

were applied, the question appears to be whether the conduct of the agent measured up to the standard of his capabilities. Did not the appellant, foreseeing the possibility of death ensuing by failing to curb his emotions and failing to desist from attacking the deceased, fall short of the standard of the reasonable man (or, if the subjective approach is used, to measure up to the standard of his own capabilities)? The existence of dolus does not preclude the answering the question in the affirmative. The accused was negligent in causing the death of the deceased. Intention and Motive o o Motive: the reason behind the conduct. It is immaterial and had no bearing on the Intention: in respect of crimes involving circumstances or consequence. In terms element of intention. of crimes or circumstance, the accused knows the conduct is illegal but still goes about with the act. The intention requirement is the same. Knowledge of Unlawfulness: Ignorance or Mistake of Law Intention must exist: o o i. ii. Knowledge of unlawfulness of act; If no awareness, then error.

General Rule: SA Until 1977 Ignorance of the law is no excuse. Everyone is presumed to know the law.

Exception to the rule before 1977: When a person is mistaken or ignorant as to the facts, not the law. E.g. knowing trespassing is unlawful, but the trespasser believes he is lawfully on the land. However, it was held that genuine ignorance and mistake should be excused as no one can be expected to possibly know all the laws of the land. S v De Blom

This case made an important and far reaching contribution to the question whether knowledge of unlawfulness is a requirement of mens rea. De Blom was charged with the contravening a certain exchange control regulation according to which it was a crime for a

person travelling abroad to take jewellery worth more than a certain amount out of the country without prior permission. The AD accepted that culpability was a requirement for this statutory crime, although it did not specify which form of culpability i.e. intention or negligence was required. Her defence was that she did not know that such conduct constituted a crime. The AD held that she was truly ignorant of the relevant prohibition. It upheld her defence of ignorance of the law and her conviction on this charge was set aside. In analysing this case, it was declared that it had to be accepted that the clich every person is presumed to know the law no longer had any foundation and that the view that ignorance of the law is no excuse, in light of the present-day view of culpability, no longer have any application in our law. Thus if owing to ignorance of the law, she did not know that her conduct was unlawful, she lacked the intention. If negligence was the requirement form of culpability, her ignorance of the law would have been a defence if she had proceeded with the necessary caution to acquaint herself with what was expected of her. I know of no principle whereby a person who is aware of all the material facts constituting the offence can escape criminal responsibility on the ground of lack of mens rea merely because he was unaware that his conduct constituted a contravention of the law. On the contrary, the rule is that every person is presumed to know the law and that ignorance of the law is no excuse. The court did not discuss the question whether even unreasonable, avoidable or negligent ignorance of the law also constituted a defence, but a careful perusal of the judgment and of the views of writers quoted by the court with approval, can lead to only one conclusion: that a purely subjective test was introduced to determine whether she acted with culpability if charged with a crime requiring intention: mistake of the law excludes intention. In criticising this case, it has been held that the positive value of the decision in De Blom

is that it abolished the untenable and illogical presumption that everybody knows the law, as well as the unreasonably harsh rule that ignorance of the law can never be a defence. However, it is submitted that the court erred in not placing any limitation on the scope of this defence and more particularly that it erred in applying a purely subjective test in crimes requiring intention, thereby recognising ignorance of the law as a defence even if such ignorance was avoidable.

This aspect of the decision is incorrect from a legal-historical point of view. In that

neither RL nor RDL simply allowed all forms of ignorance of the law to operate as a defence in crimes of intent. The overall impression that one gets is that the RD writers were prepared to recognise ignorance of the law as a defence only if the ignorance was unavoidable or not due to negligence on her part. It can also not be justified from a legal-comparative point of view. Writers are worried about the far-reaching effects of the acceptance, without some qualification, of ignorance or mistake of law as always being a defence to criminal liability. Only crimes with intention must show knowledge of unlawfulness. o care. o Knowledge of unlawfulness must always be proved i.e. know they were acting in contravention of the law. SYNMAN: Criticized the De Blom judgment, he is of the view that a subjective test is not supported in RL or RDL. In that it departed from what should be the case in our law. This is an incorrect use of culpability as such external factors are to be taken into account. BURCHELL: Supported the De Blom judgment, he is of the view that if an objective Negligence: one is liable if it is shown that he failed to show reasonable stand or

approached is used, greater injustices will occur. The question according to him should be whether subjectively, the accused made a mistake S v Sam

In judging mens rea no difference ought to be made between error iuris and error facti. It is so that in an offence where intention (dolus) is a requirement the state must prove mens rea beyond reasonable doubt. Whether an error of fact is reasonable or unreasonable is not relevant because the test is subjective. The concept of reasonableness or unreasonableness, and the degree thereof in the circumstances and facts of each case, only becomes1 of consequence in connection with the proof of whether the accused erred bona fide or not. It does not affect the legal principles as such. This applies in both common law and statutory offences where dolus is a requirement. The judge took the view that in judging mens rea there is no difference between error iuris and error facti. It was further held that whether the accused is charged with a common law or

a statutory offence, if mens rea in the form of intention is required, since the test of intention is subjective, it is immaterial whether the mistake was reasonable or unreasonable as long as it was bona fide, genuine. The reasonableness or unreasonableness of the error, and that degree thereof in the circumstances of each case, becomes of consequence only in respect of proof of whether the accused erred bona fide or not. The burden of proving mens rea beyond reasonable doubt, despite ignorance or mistake, is upon the state Defences Excluding Intention An accused will not be liable where there is reasonable doubt as to whether he possessed The following factors may exclude intention, namely: o o Ignorance of mistake regarding an essential element of liability; Existence of a defence excluding unlawfulness or capacity.

intention.

S v De Blom

This case effectively swept the ignorantia juris rule from our law. In that mistake need not be reasonable but essential and genuine. The mistake must relate to the act, definitional element of the crime and unlawfulness and this can exclude intention. Post-De Blom era: It has been held in various cases after De Blom that such a defence will be raised by everyone. Other Defences: 1. must be bona fide committed. Ignorance: total lack of knowledge in relation to a subject matter. Mistake: knowledge id present but person made, or came to, the wrong conclusion. o Aberration ictus: This means going astray or missing the blow. Intention plus the Mistake This entails ignorance of the law. It involves mistake of law or mistake of facts. The mistake

unlawful act leads to the mistake. This view has however been criticised. In that if A intends to kill J, but instead kills M, A is guilty of culpable homicide of M although he meant to kill J. o Error in objecto: This deals with the intent to kill J but instead P gets killed. One is mistaken as to the identity of the object or person their unlawful conduct is aimed at. In

that one thinks P was J. However it has been held that with this approach mistake is irrelevant as one still intended to commit an unlawful act i.e. kill. o 2. Mistake as to the causal sequence: the way in which the accused foresaw Youthfulness something happening must have happened more or less in that way. E.g. S v Goosen. This occurs when a person is doli incapax a child may have the criminal capacity but lacks intention. This may be difficult to determine due to maturity. 3. foresight. 4. intoxication can exclude intention. 5. approach is rarely used. 6. Putative Defence This is a supposed defence where a person genuinely believes that he has a defence that excludes unlawfulness when in fact he doesnt have one. This is a mistake as to the grounds for justification. If such a belief is however reasonable, negligence will also be lacking. Intention is not present i.e. he didnt have the intention to break the law. Acts such was necessity, superior orders, disciplinary chastisement, public authority and consent when used properly can be characterised as putative defences. Provocation and Emotional Stress: This can result in lack of intention. An objective test is used with no objective limits. It is common knowledge that this Intoxication: S v Chretien it was held that Insanity or Mental Illness lack of

2.

Negligence (culpa)

Negligence is a form of fault and requires an objective test. It is however a less serious or blameworthy form of fault than dolus. It is most commonly found in statute. Intention: accused is blameworthy because he knew conduct was unlawful. Negligence: accused did not know of foresee, but should have known or foresaw because

a reasonable person would have. S v Ngubane

This case is very important in this respect as it differentiated between negligence and intention. This difference is so fundamental that it may be conceded that the two concepts never overlap. It may also be conceded that, at least theoretically, proof of dolus does not necessarily amount to proof of culpa. But this is not the end of the enquiry. The question remains whether proof of dolus necessarily excludes culpa. Dolus connotes a volitional state of mind. Culpa, it would seem, may entail no state of mind at all. The mere labelling of culpa as a form of mens rea does not necessarily and decisively point to the contrary. The view generally held by our Courts is that culpa is constituted by conduct falling short of a particular standard, viz that of the reasonable man. Although the reasonable man standard may to some extent be individualised in certain circumstances, it remains an objective standard. If failing to meet such a standard of conduct is the essence of culpa, then it seems unrealistic to equate it to a state of mind at all. Some of our writers, however, propound a "subjective test" for negligence. A few may be mentioned. Some writers are of the view that culpa does relate to a state of mind, viz inadvertence. Definition It is a term used in law to indicate that the conduct of a person has not conformed to a prescribed standard of care adhered to by law. It is concerned not only with what a reasonable person would have foreseen but also the care exercised by a reasonable person in those circumstances. o o o Negligence is the failure to act as a reasonable person would have acted It is a test accused conduct (value judgment) Here non-conformity=blameworthy though as said above it is less serious than

direct intention.
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Culpa vs. Dolus Are they mutually exclusive concepts? A. DOLUS Here the person knew or foresaw that his conduct was unlawful and yet persisted in its accomplishment. It is concerned with the actual state of mind of the accused and is based on a subjective test. B. CULPA This deals with what a reasonable person would have done in the circumstances. It is concerned with the nature of his conduct and is based on an objective test. Its enquiry is not the state of mind of the accused but deals with outside criteria to measure the accuseds conduct. Rationale for Negligence: Negligence works as a deterrent by alerting people to the need to take care in certain situations. It sets standards of minimum compliance and this allows courts to exercise value judgment regarding the conduct of the accused.

Test to determine Negligence: I. Would a reasonable person in the same circumstances of the accused have foreseen the reasonable possibility of the occurrence of the consequences or circumstance, including its unlawfulness; if so II. Would a reasonable person have taken steps to guard against such a possibility? And if so III. Did the accused fail to take the steps which he should reasonably have taken to guard again it? Simply put, negligence is tested objectively. However, while we maintain that test for negligence is objective, it must be noted that

there is an acceptance that the test must contain some degree of individuality. Who is the reasonable person? Bonus paterfamilias - (the good father of the family)

Diligens parfamilias - (the diligent father of the family) It is one who is regarded as a normal ordinary average person of normal knowledge and

intelligence. S v Burger

The accused had assaulted his victim with blows including a few kicks, at or below the victims stomach. The accused was wearing shoes. The victim died a few days later as a result of the injuries inflicted by the accused. The accused was convicted of culpable homicide. Culpable homicide is the unlawful, negligent causing of the death of a human being. Basically there must be some conduct on the part of the accused involving dolus (such as an assault), or culpa. Such conduct must cause the death of the deceased. In addition there must be culpa in the sense that the accused ought reasonably to have foreseen the possibility of death resulting from such conduct. It follows from the foregoing that causation of death, even as the result of an unlawful act which is criminally punishable, is not of itself sufficient to constitute the crime of culpable homicide. If an accused does foresee-as distinct from ought to have foreseen-the possibility of such resultant death and persists in his conduct with indifference to fatal consequences (or if he actually intends to kill) the crime would be that of murder. Having regard to the requirements of foresight and persistence, the dividing line between a) Murder with dolus eventualis and b) Culpable homicide, is sometimes rather thin Culpa and foreseeablitity are tested by reference to the standard of a diligens paterfamilias. One does not expect from a diligens paterfamilias any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver. In short, a diligens paterfamilias treads lifes pathway with moderation and prudent common sense. The appeal court held that it was unpersuaded that the trial court erred in finding that the deceaseds death was caused by the appellants assault which included kicks in the stomach and in finding that the subsequent thrashing by others did not cause the fatal perforation. Ought the appellant reasonably to have foreseen the possibility of death resulting from the kicks in the stomach with a foot? The deceased was a tall, slightly built, gangling youth. The
1

appellant on the other hand was stronger and heavier. It would be asking too much to suppose that he would not appreciate the possibility that kicks by a strong young man, wearing shoes, in the stomach of a slender youth might well cause serious injury; and that such injury could bring death hovering in attendance. Serious injury and death are sombrely familiar as cause and effect in the walks of human experience, for the vulnerabilities of the human body are legion, and death may come to mortals through a variety of corporeal hurts and derangements. The trial court was right in finding that the appellant ought reasonably to have foreseen the possibility of death resulting from his kicking of the deceased in the stomach. (This does not mean that he did foresee: had that been the case, the verdict would have been murder.) The accused was negligent in relation to the resultant death; and the verdict of guilty of culpable homicide cannot be disturbed. The Negligence Test I. Reasonable Foreseeability Here, mere carelessness does not mean negligence. Negligence must relate to the result (consequence); The state must prove beyond reasonable doubt that the accused foresaw the death Not merely bodily injury, he must have foreseen death ensuing A substantial inference needs to be made Remote possibilities are not taken into account One has to look at the circumstances in which the accused found himself in If a person has specialized skills of some sort (exception to the objective test of

negligence), knowledge will be judged with a reasonable person of similar skills, however if a person who is not a specialist still persists = negligence. o o Can one foresee that with certain conduct, such-and-such result will ensue? Is a person guilty of culpable homicide if he unlawfully assaults another and, in so

doing causes his death but under circumstances in which he could not reasonably have foreseen? o S v Van Der Mescht

The accused and another were in possession of unwrought gold. They melted it on the stove and this gave off certain gas which resulted in the death of the other and four children who were in the house at that time. The trial court convicted the accused of culpable homicide on the ground that he was negligent in not foreseeing the possibility of death. The conviction was however set aside by the AD, holding that the prosecution failed to prove that the deaths were attributable to the accuseds negligence. Whether the appellant was correctly convicted of culpable homicide purely on the basis that he caused the death of the deceased by his unlawful conduct, without negligence having been proved? The court held that although there is some support in our law for the versari doctrine, it was by no means generally accepted and that those who did adopt it posed an important proviso as regards the nature of the res illicita. The view that a person who causes anothers death in the process of committing such an act, is liable for homicide, is incorrect. Now instead of restricting liability in accordance with the demands of justice, it serves merely to enforce it, in conflict with contemporary notions of justice, in cases where the absence of fault on the part of the perpetrator in regard to a prohibited consequence would otherwise preclude criminal liability. The fact that the death of the deceased resulted from the commission by the appellant of an unlawful act, namely melting of the substance, does not justify, in the absence of fault on the part of the appellant vis--vis such a result, a conviction of culpable homicide. o S v Bernardus The accused had killed the deceased by throwing a stick at him. The point of the stick penetrated the skull of the deceased. The trial court found him guilty of culpable homicide. Is a person guilty of culpable homicide where he unlawfully assaults another and in so doing causes his death, but when circumstances in which he could not reasonably have foreseen the death? The court held that the versari principle is directly in conflict with the fundamental principle of criminal law, i.e. no punishment without fault. The bare intention in regard to assault cannot, without compromising this principle, be considered a justified or acceptable substitute for culpa in regard to death, since in itself such intention, without more, cannot constitute a fault connection between the actor and the deadly

consequences. From the nature and circumstances of the assault fault could naturally be inferred, but a conviction of culpable homicide where such a fault connection is lacking, simply on the basis of the unlawfulness of the intentional assault, is an undisguised form of consequence-liability. The principle of versari was rejected as out dated and out of keeping with the emphasis in our law on fault in regard to the consequences of conduct. The question was therefore answered in favour of the appellant, but on the facts the conviction and punishment for culpable homicide was confirmed on the basis that a reasonable person in the position of the appellant should have foreseen the possibility of death resulting. Therefore a normal person should foresee that through a minor assault an extraordinary and unexpected death may be caused. o S v Van As The accused gave D a hard slap, on his cheek, with his right hand. As a result D, who was a very fat man, lost his balance, fell backwards and hit his head on the cement floor. He became unconscious and died. The trial court convicted the accused of culpable homicide, but on appeal the verdict was altered to one of guilty of assault only since it had not been proved that, in all circumstances, the accused could and should have reasonably foreseen Ds death. The trial court relied on the case of S V BERNARDUS. The court in this case held that, it has been argued that foreseeability of serious injury cannot always be equated with foreseeability of death itself. The reliance of the trial court on the case of S V BERNARDUS was incorrect. In criminal law, when death follows upon an unlawful assault, it must be proved, before there can be a finding of culpable homicide, that the accused could and must reasonably have foreseen that death could intervene as a result of the assault. The expression must have foreseen is used in the sense of ought to have foreseen. If it is proved that the accused ought reasonably to have foreseen that death was a possible result and that the causation requirement has been satisfied the case is concluded. The question is, therefore, simple: could and should the accused reasonably have foreseen that the deceased could have died as a result of the slap. That foreseeability of serious bodily injury usually, but not always, goes hand in hand with foreseeability of death is correct, but it will certainly

depend on the nature of the injuries inflicted in a particular case whether there was a reasonable foreseeability of death or not. The use of the diligens paterfamilias as a person who in particular circumstances will act in a particular manner is used in law. In other words what he would have done is regarded as reasonable. He is viewed objectively, but in essence he is viewed both objectively and subjectively because he represents a particular group or type of persons who are in the same circumstances as he is, with the same ability for knowledge. If a person, therefore, does not foresee what other persons in the group could and should have foreseen, then the element of culpa, i.e. omission to foresee, is present. That foreseeability and care are related to each other and that lack of care usually flows from an omission to foresee, can in my opinion, hardly be denied. The foreseeability of the death, as possibility, in the case of culpable homicide, does of course; also not require the foreseeability of the precise manner in which the death occurred, as long as the possibility of the death, as result, was foreseeable II. Reasonable steps to guard against the possibility: There has been regard to the fact that there are instances where a reasonable person can foresee a result but might not take reasonable steps. One has to balance the impact of social utility against the magnitude of the risk or harm. III.Failure of the accused to take such reasonable steps: Our law does not recognise degrees of negligence as such a person is either negligent or they are not. Hence a person is negligent if he deviated from the acts of a normal person.

Can Negligence and Intention overlap? (NB) Dolus and culpa are different concepts. The existence of intention does not necessarily exclude negligence. S v Ngubane

Whether dolus does not exclude culpa because they are incompatible concepts. Dolus and culpa are different concepts. The difference is so fundamental that it may be conceded that

the two concepts never overlap. It may also be conceded that, at least theoretically, proof of dolus does not necessarily amount to proof of culpa. Whether proof of dolus necessarily excludes culpa? Dolus connotes a volitional state of mind. Culpa, it would seem, may entail no state of mind at all. Culpa is constituted by conduct falling short of a particular standard, viz that of the reasonable man; failure to measure up to a standard of conduct. Difficult to accept that dolus excludes culpa. Negligence and Mistake: If the accused is charged with the crime of negligence but has an excuse excluding unlawfulness when there is in fact no such defence, his belief that there was such a defence must be reasonable in order to exclude negligence. R v Mbombela (NB)

The accused was found guilty of the murder of a 9 year old child. The accused, between 18 and 20 years of age, living in a rural area was described by the court as of rather below the normal intelligence. On the day in question, some children were outside a hut which they supposed to be empty, and they saw something that had two small feet like those of a human being. They were frightened and called the accused. The accused apparently thought the object was an evil spirit, which according to belief, occasionally took the form of a little old man with small feet. According to this belief, it was fatal to look this spirit in the face. The accused fetched a hatchet and, in the half light, struck the form a number of times with the hatchet. When he dragged the object out of the hut, he found that he had killed his young nephew. His defence was that he genuinely believed that he was killing an evil spirit, not a human being. On appeal, the defence was rejected on the ground that to success the mistake had to be reasonable. A conviction of culpable homicide was substituted. Mistake of fact, in order to be a defence in criminal law, must not only be a bona fide belief, but must also be a reasonable belief. A reasonable belief is such as would be formed by a reasonable man in the circumstances in which the accused was placed in a given case. The reasonable man is in this connection the man of ordinary intelligence, knowledge and prudence. Mistake of fact is not reasonable if it is due to lack of knowledge and intelligence as is possessed by an ordinary person, or if it is due to such carelessness, inattention and so forth, as an ordinary person would not have exhibited. The particular point, however, which

is raised by the question reserved, is whether there is only one type of reasonable man who is taken as the legal standard, or whether in a case like the present, another type of reasonable man is to be conceived of, i.e. an ordinary native aged 18 and living at home in his kraal. There is only one standard of reasonable man. Thus in the present case if the standard were taken to be an ordinary 18 year old native living at home in his kraal, then in each and every case the standard would have to be varied so as to suit the description of the particular accused. In other words, there would be no standard, and all that the jury would have to enquire into would be whether a person with the mental and moral and temperamental and racial idiosyncrasies of the accused, could reasonably fall into such a mistake of fact. The only question would be, whether the accuseds mistake of fact was bona fide, and the element of reasonableness would be practically eliminated The judge held that the standard to be adopted in deciding whether ignorance or mistake of fact is reasonable, is the standard of the reasonable man, and that the race, or the idiosynacrasies, or the superstitions, or the intelligence of the person accused do not enter into the question. It was correct of the trail judge to direct the jury to apply the standard not of a native 18 years old living at home in his kraal, but of an ordinary reasonable man of his age. There is no doubt that the accused bona fide believed that he was killing an evil spirit and not a human being. In other words if it is found that the accused was under this belief, he should be found guilty of culpable homicide. He was therefore found guilty of culpable homicide and not murder. Conviction and sentence were set aside. Negligence and Attempt and Accomplices: Just as one cannot intend to be negligent so also can one not have an accomplice to a negligent crime.

Actus Reus and Mens Rea (the contemporary rule): Where fault is an element of a crime, intention and negligence must occur at the same time as the crime which is committed. INTENTION / NEGLIGENCE + UNLAWFUL ACT = CRIME. S v Masilela

The appellants had been charged with murder. The evidence showed that they had assaulted the deceased by striking him over the head and throttling him with a tie pulled down around his neck. After throwing him on the bed and covering him with a blanket they proceeded to ransack the house. After setting fire to, and under, the bed whereon the deceased lay and other portions of the house, they made off with the A money found in the house and articles of clothing. The next morning the house was seen to be on fire, the fire was extinguished but the deceased had long since been dead, his body being extensively charred. The post-mortem examination revealed some potentially serious injuries to his head and that his neck had been broken. There were also indications of strangulation and attempted strangulation. According to the medical evidence led at the trial these injuries probably only rendered the B deceased unconscious: the actual cause of death was carbon-monoxide poisoning derived from the fumes of the fire. The trial Court found the appellants guilty as charged without extenuating circumstances. In an appeal on a question of law reserved by the State as to whether the crime committed by the appellants was murder, Held that the appellants were guilty of murder even though their intention to kill was concerted, not previously but as 'a matter of improvisation in the course of the execution of their robbery'. Question accordingly answered in the State's favour. Held, further, per RUMPFF, J.A., that, in this sort of case where the accused and nobody else causes the death, the accused's mistake as to the precise manner in which and time when death occurred is not a factor on which he can rely.

6.

Participation in Criminal Activities

Persons involved in a crime Participants before the completion of the crime: Perpetrators Accomplices

After the completion of the crime: Accessories after the fact

S v Williams - Previously it was: Principal offender Socius criminis (partner in crime) Accessory after the fact

Participants A participant commits the crime or helps in the actual commission of the crime. An accessory after the fact is not a participant: he comes in after the completion of the

crime. Perpetrators and Accomplices participate before the completion of the crime. An Accessory after the fact participates after the completion of the crime.

Participation before the completion of the crime Perpetrators It is not necessary to single out a principal perpetrator and the distinction between direct and indirect perpetrator is immaterial. He acts before the crime is complete and acts with the necessary fault and unlawfulness. A perpetrator is liable in his own right. Types I. II. III. If they personally commit the crime and satisfy the definitional elements of the crime Act together and liability is imputed on each: Principles of Common Purpose. A person procures another to commit a crime for him i.e. an innocent person, animal, etc

o He who acts through another does so himself. He is the perpetrator. o Some crimes cannot be committed through another i.e. rape. One can assist but liability will be different. o More than one perpetrator = co-perpetrators. Common Purpose Where two or more people agree to commit a crime or actively associate in a joint

unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common purpose. Each criminal is responsible for the crime committed by one or the group. May arise:

i. Prior agreement to commit a crime. ii. No such prior agreement, but active association of participants. If the participants are charged with having committed a consequence crime, it is not

necessary for the prosecution to prove beyond reasonable doubt that each participant committed which contributed causally to the ultimate unlawful consequence. It is not necessary to establish precisely which member of the common purpose caused the consequence, provided that it is established that one of the group brought about this result. However, prosecution still has to prove that the crime was committed with the requisite Requirements: o Fault any of the forms of fault (intention or negligence). o The time when the common purpose formulated. The court must take into account the mental state of the accused may

fault element (mens rea).

change and the common purpose may consequently end. Unlawful conduct the participation in the unlawful conduct is the conduct. Even if the accused is not the actual doer, as long as he is actively

participating, that is the unlawful conduct.

Causation the conduct of the person who actually causes the consequence is

implicated to the other participants. Therefore, the State does not have to show causation in respect of each and every individual. The rationale behind this is crime control. o S v Safatsa

There was a brutal murder of the deputy-mayor by a crowd of about 100. Members of the crowd stoned and burnt the deceased to death. It was not possible to determine which specific members had participated directly in the killing. In the event, 6 members were identified and brought to trial on charges of murder. Although there was no evidence that they had struck a blow the caused the death, they were convicted of murder on the basis that they had made common purpose with the unknown members of the crowd who had struck the blows that killed the deceased. The 6 were sentenced to death. Issue: in cases of common purpose in relation to murder, is it competent for a participant in the common purpose to be found guilty of murder in the absence of proof that his conduct individually caused or contributed causal to the death. Botha JA held that the legal position relating to common purpose was that there is no room for requiring proof of causation on the part of the participant in the common purpose who did not do the deed. In the present case, he held that there can be no doubt that the individual acts of each of the 6 accuesed convicted of murder manifested an active association with the acts of the mob which caused the death of the deceased. These accused shared a common purpose with the crowd to kill the deceased and each of them had the requisite dolus in respect of his death. Consequently, the acts of the mob which cased the deceaseds death must be imputed to each of these accused. o S v Mgedzi A room at a mine compound was shared by 6 team leaders who were regarded by their fellow-workers as informers. The room was attacked one night and four of the team leaders were killed. While the accused who were members of the attacking party were adequately identified, no state witness saw any of the accused inflict upon the deceased an injury which caused or contributed causally to their death. Trial court invoked the doctrine of common purpose and convicted all the accused of murder. On appeal the AD

found that the trial court had erred in not considering the evidence of each accused separately and individually, and had seriously misdirected itself by assessing liability in respect of all the accused en bloc. Someone who is a spectator cannot be liable as he is not part of the common purpose. The court laid down the pre-requisites of active association form: 1. 2. room. 3. 4. 5. Accused must have intended to make common cause with those who were Accused must have manifested his sharing of a common purpose by Accused must have had the requisite mens rea; so, in respect of the killing actually perpetrating the assault. himself performing some act of association with the conduct of the others. of the decease, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue. The accused were aware of the assault and intended to make common purpose with people going about the assault. o S v Thebus The common purpose rule is constitutional in its active association form. Acknowledged the pre-requisites by Mgedzi and confirmed the principle of common purpose: highlighted problems of joint crimes: cp did not infringe rights to dignity, freedom: does not place presumptions of guilt or revenge onus: does not infringe right of innocent Issues before the CC: whether or not the SCA failed to develop the preContrary to the cardinal principle of criminal liability presumption of Deprives their freedom & security arbitrarily and or/without a proven just constitutional common law rule. innocence violated. cause. The accused must have been present at the scene where the violence was Accused must have been aware of the assault on the inmates of the mine being committed;

Violates their right to dignity. CC Judgment: set out the purpose of CPD. CPD: does pass the constitutional muster and does not require to be

developed as instructed by s 39(2). Carmichele v Minister of Safety & Security & Another 2001 (4) SA 938 (CC). CC rejected the argument that CPD dehumanises the appellants. CPD set a constitutionally permissible minimum standard for criminal CC rejected the contention that CPD deprives the appellants their right to There is no reverse onus placed on the appellants.

liability in case of joint criminal liability. be presumed innocent. Burchell: The common purpose principle, which dispenses with the proof of the causal element in consequence crimes in certain circumstances, is a contradiction of the fundamental rule that the prosecution must prove the elements of liability beyond reasonable doubt and the rule is therefore an infringement of the presumption of innocence. However, in the requirements of mandate or prior agreement (where there

is a specific crime or crimes, and some crime, other than that intended actually results from the criminal association) there is more justification for a conviction of all parties as coperpetrators. Dissociation or Withdrawal from a Common Purpose What constitutes sufficient dissociation from Common Purpose? No specific rules Facts of each case differ Depends on circumstances 1. person. Clear and unambiguous intention to withdraw this is subject to the state of the

Snyman sets out 5 guidelines to be considered: 266/267

2. 3. 4. 5.

Some positive act of withdrawal person has to do something to show Voluntary withdrawal e.g. if a suspect flees from the police, its not necessarily Withdrawal before the course of events have reached commencement of The type of act will depend on the circumstances.

withdrawal. voluntary because his intention is not to leave the scene. execution. S v Singo

The appellant was, along with seven other young men, convicted of murder in the Venda Supreme Court and sentenced to five years' imprisonment, of which two were conditionally suspended. It was common cause that the accused had been part of a mob that had attacked an old woman whom they believed had bewitched a young girl. After having thrown two stones at the deceased (of which one had hit her), the appellant was himself injured, and consequently decided to leave the scene in order to go home. The Court a quo found that (1) the appellant had had the common intent to kill the deceased and that he had acted in association with the crowd in executing that intent; and (2) that there was at least a reasonable possibility that the deceased's fatal injuries were inflicted after the appellant had left the scene. The Court nevertheless found the appellant guilty of murder on the basis that there had not been a change in his intention (despite the fact that he had left the scene), and that he had accordingly not intended to dissociate himself from the actions of the other perpetrators, whose actions were also regarded as his. The Court however granted the appellant leave to appeal 'on the question as to whether his discontinuance of participation in the assault on the deceased . . .(amounted) to a dissociation from the common purpose to kill' Held, that it was clear that, if the appellant had effectively dissociated himself from the common purpose prior to the infliction of the fatal injuries on the deceased, he could not be convicted of murder. Held, further, that earlier authorities on this topic were not of much assistance in that they dealt with common purpose arising from express agreement or conspiracy, whereas in the instant case the common purpose was manifested simply by conduct. Held, further, that in these cases liability required in essence (1) that the accused must have had the intent, in common with the other participants, to commit the substantive crime

charged, and (2) that there had to have been an active association by him with the conduct of the others for the attainment of the common purpose. Held, further, that it followed that liability would only continue while both requirements remained satisfied, or, conversely, that liability ceased when either requirement was no longer satisfied. Held, further, however, that it was from a practical point of view difficult to imagine situations in which an accused would be able to escape liability on the ground that he had ceased his active association with the offence while his intent to participate remained undiminished: if he desisted from actively participating whilst still retaining his intent to commit the offence in conjunction with the others, the result would normally be that his initial actions would constitute a sufficient active association with the attainment of the common purpose to render him liable even for conduct of the others committed after he had desisted. Held, further, that where the accused not only desisted from actively participating, but also abandoned his intention to commit the offence, he could in principle not be liable for any acts committed by others after his change of heart: he then no longer satisfied the requirements of liability on the ground of common purpose. Held, further, that the above test for dissociation would often be difficult to apply, but that it was ultimately a question of fact and evidence: although an accused started with the problem that, ex hypothesi , he was an active participant in the common purpose, the onus here, as elsewhere, was on the prosecution and, if in a case of murder a Court had a reasonable doubt whether at the critcal stage when the deceased received his mortal wounds the accused was still a party to the common purpose of those assaulting the deceased, the accused was entitled to the benefit of the doubt. Held, further, applying the above principles to the facts of the present case, that it was clear that when the appellant decided to leave the scene in order to go home, he had decided to end his active participation in the assault; that it was at least a reasonably possible inference that he had also abandoned his intent to kill the deceased; and the fact that his change of intent was not, on the evidence, caused by moral considerations, was not relevant.

Held, further, that the appellant had effectively dissociated himself from the actions of the crowd before the deceased had received her fatal wounds, and that he could accordingly not be found guilty of murder. Held, further, that inasmuch as he did actively participate in the attack on the deceased during the initial stage of the assault, and did so with the intent to kill her, the appellant was guilty of attempted murder. Appeal allowed and conviction altered to one of attempted murder and the sentence replaced with one of five years' imprisonment of which four years were conditionally suspended for five years. S v Lungile

The defence of absence of common purpose On behalf of the first appellant it was argued that there was no proof on the basis of common purpose that first appellant was an accomplice to the robbery or to the murder. It is clear that the conviction of robbery was not based on the doctrine of common purpose, but on the direct acts of the first appellant alluded to above: he was a member of the gang that entered the bank, obviously with the intention of committing a robbery; he actively participated in the robbery, guarding some of the employees, taking money from a drawer and removing watches and jewellery from the employees and trying to make off with the spoils. As far as the murder charge is concerned, the first appellant's conviction was based on common purpose. It was not proved that he was armed or that he fired any shot, but he was part of the gang of four of which at least two were armed with firearms and he actively participated in the I execution of the robbery. According to his own plea explanation he was aware that Toboshe was in possession of a firearm. Neither in his plea explanation nor in what was put to any witness was it suggested that he was not aware that second appellant was armed. In fact, the State witnesses all say that second appellant brandished his revolver from the outset of the robbery. The trial Court found that first appellant knew that second appellant was armed. It could be argued that first appellant's flight from the shop when he saw the police enter with a firearm demonstrated his lack of association with any criminal common purpose. This argument would not be based on dissociation from a common purpose, but would be aimed at

creating doubt whether there had ever in fact been an association with a criminal common purpose. This distinction is subtle, but real, and has been made by this Court before. Had there in the present case not been a prior agreement to commit a crime this might have been a valid argument. But, in view of the prior agreement to commit a robbery and his participation in the execution thereof as set out above, the fact that the first appellant left the scene before the shooting started cannot avail him. The defence of dissociation On behalf of first appellant it was submitted that the fact that he had left the scene before the shooting started was an indication of an effective dissociation with the robbery and its further sequelae. The present case differs from S v Singo where there was no prior agreement and the common purpose was manifested simply by conduct. It may well be the correct position that where there had been a prior agreement to commit a crime, and participation to some substantial degree in its execution, that something more than a mere withdrawal is required to establish a legally effective dissociation, e.g. a notification to the co-conspirators and a nullification or frustration of the further implementation of the enterprise. Whether the dictum in Beahan's case applies in our law, and whether it is a rule of law or a rule of thumb, have been left open by this Court. The matter need not be decided in the case now before us, because it is clear that, on whatever view one takes of the matter, there was no effective dissociation. The first appellant's mere departure from the scene is a neutral factor. It is more likely that he fled because he was afraid of being arrested, or of being injured, or to make good his escape with the stolen money and goods. It has, therefore, not been established as a reasonable possibility that the first appellant dissociated himself from the planned enterprise and its sequelae. Musingo v S (just look at dissociation and how court looked at previous cases...)

The four appellants were convicted of murder and robbery with aggravating circumstances. They were found guilty of killing the deceased by assaulting and strangling her to death and attempting to poison her, whereafter they took cash from the safe from her parents' house. The third and fourth appellants purported to disassociate themselves from the murder as they averred that they, after tying up and blindfolding the deceased, refused to partake in poisoning her. They then left the scene while the first and second appellants attempted to poison the deceased. The first and second appellants were sentenced to death for the murder

and to 12 years' imprisonment each for the robbery. The third and fourth appellants were sentenced to effective terms of imprisonment of 18 and 20 years each. The trial Court granted them leave to appeal against their convictions only. Held, that the third and fourth appellants, by departing the scene, and leaving the helpless deceased to her probable (and actual) fate, must have been taken to have had acquiesced in the expansion of the common purpose unless they effectively took steps to disassociate themselves from that development. Held, further, that not every act of apparent disengagement would constitute an effective disassociation. Much would depend on the circumstances: On the manner and degree of an accused's participation; on how far the commission of the crime had proceeded; on the manner and timing of disengagement; and, in some instances, on what steps the accused took or could have taken to prevent the commission or completion of the crime. The list of circumstances was not exhaustive. To reduce this composite of variables to a workable rule of law may be artificial, even unwise. Held, further, that the greater the accused's participation, and the further the commission of the crime had progressed, then much more would be required of an accused to constitute an effective disassociation. He may even be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment. The third and fourth appellants did not do enough to disassociate themselves. Held, further, that the appeals of all four appellants against their convictions for murder and robbery with aggravating circumstances were dismissed, and those convictions were confirmed. The Judgment: The latter proposition assumes that an intent to kill was not part of the common purpose in the first place. It is implicit in the judgment that the trier of fact so assumed or found otherwise I the reasoning to which I have referred would have been unnecessary. Perhaps the Court below took that unstated view of the facts because there was no evidence to indicate that the men went armed to the farm, or that arms were used. It seems to me, however, that the facts raised two closely related issues.

The first is whether the common purpose to rob was expanded, as events progressed, so as to include a common A purpose to murder. If so, the second issue is whether appellants 3 and 4 effectively disassociated themselves from the expanded common purpose. The appellants purported to disassociate themselves from the murder (they refused to be part of the poisoning) but not from the robbery (they went off with the money and shared it). What had become clear to them, however, was that the robbery was developing into a murder which would be facilitated by their own prior conduct. It appears to me that by departing the scene, and leaving the helpless deceased to her probable (and actual) fate, the appellants must be taken to have acquiesced in the expansion of the common purpose unless they took steps effectively to disassociate themselves from that development. That our law recognises a defence of disassociation (in some other jurisdictions called withdrawal) is clear. S v Singo; S v Nduli; S v Lungile. In the case of a conspiracy or common purpose, Gubbay CJ ventured the following dictum in S v Beahan: 'I respectfully associate myself with what I perceive to be a shared approach, namely, that it is the actual role of the conspirator which should determine the kind of withdrawal necessary to effectively terminate his liability for the commission of the substantive crime. I would venture to state the rule this way: Where a person has merely conspired with others to commit a crime but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the coconspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner something further than a communication to the co-conspirators of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required. To the extent, therefore, that the principle enunciated in R v Chinyerere is at variance, I would with all deference, depart from it.' This Court has twice expressly left open the correctness of this dictum and whether it is rule of law or a rule of thumb. What may be gathered from our case law, however, is that not every act of apparent disengagement will constitute an effective disassociation. It appears that much will depend on the circumstances: On the manner and degree of an accused's participation; on how far the commission of the crime has proceeded; on the manner and timing of disengagement; and, in some instances, on what steps the accused took or could

have taken to prevent the commission or completion of the crime. The list of circumstances is not exhaustive. To reduce this composite of variables to a workable rule of law may be artificial, even unwise. In an article David Lanham reviewed the case law in the Commonwealth and USA. He concluded: 'While it is not possible to produce a detailed definition of withdrawal as a defence to accomplice liability, a number of principles can be extracted from the weight of authorities examined above. These principles are as follows: 1. 2. (a) (b) (c) (d) Any withdrawal, voluntary or not, which negates the actus reus of accomplice A withdrawal which does not negate the actus reus of accomplice liability may Such a withdrawal must be a voluntary withdrawal. Whatever form the participation takes, reasonable steps to prevent the crime may Where the act of participation goes beyond encouragement, mere countermand Where the participation takes the form of encouragement (eg counsel, command liability exculpates the accused. nonetheless be defence if certain conditions are satisfied -

exculpate the accused even if there is no countermand. may not be sufficient to exculpate the accused. or agreement) a potentially effective countermand will afford a defence even if no other steps are taken to prevent the crime. Such countermand may be expressed in words C or implied by conduct. (e) Withdrawal must be capable of being effective: a withdrawal which is untimely, uncommunicated, or misunderstood or a countermand which is not received by all principals will be no defence.' The particular aspect which confronts us here is whether having said no to the poisoning it was sufficient for appellants 3 and 4 to leave the scene or whether in the circumstances they were required to undo some of the prior conduct. In White v Ridley, a decision of the High Court of Australia, Gibbs J said: 'The further question raised by Archbold is whether the person countermanding or withdrawing is required, in order to escape liability, to take reasonable steps to prevent the commission of the crime. Professor Glanville Williams consider that an accused remains liable notwithstanding his communicated withdrawal unless he takes steps to avert the danger

which he has helped to create. Professor Glanville Williams cites from the judgment in Eldredge v United States: ''A declared intent to withdraw from a conspiracy to dynamite a building is not enough, if the fuse has been set; he must step on the fuse.'' It seems entirely reasonable to insist that a person who has counselled o or procured another to commit a crime, or has conspired with others to commit a crime, should accompany his countermand or withdrawal with such action as he can reasonably take to undo the effect of his previous encouragement or participation.' In Beahan's case Gubbay CJ held: 'A reasonable effort to nullify or frustrate the effect of his contribution is required.' In Lungile's case which was an armed robbery resulting in death, Olivier JA said: '(I)t is clear that, on whatever view one takes of the matter, there was no effective disassociation. The first appellant's mere departure from the scene is a neutral factor. It is more likely that he fled because he was afraid of being arrested, or of being injured, or to make good his escape with the stolen money and goods.' In R v Becerra and Cooper, B gave C a knife to use against anyone who might interrupt their burglary. When someone approached, B said: 'come on, let's go' and went out through the window. C remained and stabbed the approaching man to death. A defence of withdrawal failed. Roskill LJ said: 'On the facts of this case, in the circumstances then prevailing, the knife having already been used and being contemplated for further use when it was handed over by Becerra to Cooper for the purpose of B avoiding (if necessary) by violent means the hazards of identification, if Becerra wanted to withdraw at that stage, he would have to ''countermand'', to use the word that is used in some of the cases or ''repent'' to use another word so used, in some manner vastly different and vastly more effective than merely to say ''Come on, let's go'' and go out through the window.' It was not specified precisely how much further B would have had to go, but physical intervention to prevent the use of the knife might have been required. In the subsequent English case of R v Grundy G had over a period of D weeks furnished prospective burglars with useful information about the premises to be burgled. G did not participate and he testified that for the last two weeks he had tried to stop H from breaking in. The Court of Appeal held that the defence of withdrawal should have been left to the jury. In

a comment on this case in the Criminal Law Review , and contrasting Becerra , Professor J C Smith wrote: 'The present case does not go so far as to require physical intervention to prevent the commission of the crime. The defence was however that G had been trying to prevent H from breaking in. It may be that an operative withdrawal can be more easily effected when it is made at a preparatory stage, as in this case, than where the crime is in the course of commission, as in Becerra. When the knife is about to descend, it would seem likely that the only effective withdrawal would be physical intervention to prevent it reaching its target.' The aforegoing authorities indicate, in my view, that on a practical level the courts of several countries, including South Africa, proceed from this premise: That the greater the accused's participation, and the further the commission of the crime has progressed, then much more will be required of an accused to constitute an effective disassociation. He may even be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a sensible and just value judgment. Joining-in This is where a person not part of the initial purpose but who has the intention joins the The conduct doesnt usually causally contribute tot he death they join in once the

attack after it has commenced. victim has been fatally wounded but is still alive. NB: Differentiate between common purpose that arises before the deceased has been

dealt a fatal wound and participation that commences after the deceased has been fatally wounded but while still alive (joinder). S v Motaung Common purpose that arises before the deceased has been dealt a fatal wound; Participation that commences after the fatal wound but the victim is stil alive.

Distinguish between: o o

The liability is different. The joinder does not cause the result so his liability is different in that respect depending on the level of involvement. Therefore he will most likely only be charged with attempted murder.

Accomplices S v Williams

An accomplice is not a perpetrator or a co-perpetrator. He lacks the actus reus of the perpetrator. He associates himself willingly with the crime. He knowingly affords the perpetrator or the co-perpetrators the opportunity, the means or information which furthers the commission of the crime. The state of mind is to assist in the furtherance of a crime = mens rae present. E.g. helping perpetrators get away i.e. he drives the car. There has to be a causal connection between what the accomplice does to assist and the consequence of the crime. Elements of Accomplice Liability I. Accessory nature: One cannot be an accomplice to oneself. The furtherance of crime is in itself a crime in its own rights. The perpetrator does not have to be caught in other for the accessory to be brought to book. He is brought in because of his own conduct. It stems from his own unlawful conduct. II. Unlawful conduct: The furthering of the crime facilitate, aid, offer info and advice. A person will not be an accomplice if they know of the crime but fail to inform the police, or if they are bystanders, or if they agree with the crime after it has been committed. III. Intention: Intentional furtherance, he foresees that the conduct is unlawful. Negligence does not suffice. Intention may be either directus, indirectus or eventalis. Punishment of Accomplices The punishment is the same as that of the perpetrator. It is the extent that may differ due to the level of furtherance (greater or lesser).

Participation after completion of the crime Accessory after the fact This aspect deals with association. There are two approaches Association Approach: A person who unlawfully and intentionally assists after the

completion, he associates himself with the crime. The association or how the person goes about it dont matter. o Has been criticised as too broad, rather use the specific objective.

Specific Objective Approach: A person here tries to defeat or obstruct the ends of justice.

E.g. hiding the perpetrator from the police, abetting. This is a narrower approach. A failure to act will generally not result in liability, unless there is a legal duty to do so. For continuing offences, e.g. theft, accomplices may be charged as a perpetrator. Example: A, B, and C are charged with the murder of D. There is no doubt that one or two of them killed D, however, it is impossible to determine which did it; and it is clear that there is no common purpose. After the murder, all helped to conceal the body. There is no knowledge of who the perpetrator is. Now the dilemma is that if none of them can be convicted of the murder, can all 3 be convicted as accessories after the fact? Answer: NO! No one is guilty of murder. There is no perpetrator so what would they be accessories to? S v Gani

Three persons had been charged with the murder of the deceased. It could not be proved beyond a reasonable doubt which of the three or combination had killed the deceased and no common purpose to kill could be established. However, it was established that all had helped dispose of the deceaseds body. The court a quo did not convict the three of being an accessory after the fact because the court had not found it possible to say any particular one of them was not a party to the murder. If it had been found that the murder was committed by all three, they would also all three have been guilty of being accessories after the fact by disposing of the body and so protecting the other two. The court would simply have convicted them of murder. If one of
1

them was the sole murderer none of them could be found guilty of being an accessory after the fact to his own crime and any one of the three might have stood in that position. Therefore, none of them could be convicted of being an accessory after the fact and they were accordingly acquitted. The crime of being an accessory after the fact is committed only when a person does acts in relation to a crime committed by another. One may, no doubt, commit the crime of defeating or obstructing the course of justice in relation to a crime committed by oneself, and many acts constituting the crime of defeating the course of justice would render the doer liable of as an accessory after the fact if he was not himself the perpetrator of the principal crime. Where the accused is proved to have done acts amounting to a covering up of the crime it is clear that he is guilty either oh having committed the principal crime or having been a n accessory after the fact to it. It is in these circumstances unsatisfactory if he is to be acquitted on both charges merely because it is not established which of the two crimes he has committed. If the accused were charged only with being an accessory after the fact the Crown would have to show that he was not guilty of the principal crime, the crime of being an accessory after the fact coming in only as the implied alternative charge. In effect, one would be saying that when the accused is charged with murder and has undoubtedly made away with the body he cannot be allowed to object to being an accessory after the fact even though, because he may have been the murderer, an essential ingredient of the crime of being an accessory after the fact has not been proved against him. This would infringe on the principal that before a person can be found guilty of a crime it must be proved beyond reasonable doubt that he committed it. The court put forward an argument: the accused person other than the actual murderer commit the crime of being an accessory after the fact to his crime when, as for instance here, they hide the body. That crime of theirs is their own distinct crime and not part of the crime committed by the murderer. If then the actual murder acts in concert with them he is taking steps in the concealment of the murder committed by him but he is at the same time participating in their crime of being accessories after the fact to the murder. Held the court a quo was wrong in ruling that none of the accused could in law be found guilty of being an accessory after the fact. Although it was not known which one or more of

them committed the murder, each one of them, if he co-operated with the others in disposing of the body knowing that the deceased had been murdered, could be found guilty of being an accessory after the fact. S v Jonathan S v Morgan

3 appellants were charged with 4 counts of kidnapping and four counts of assault with intent to do grievous bodily harm. The trial court held that the State had proved tat the appellants had, in pursuance of a common purpose, kidnapped the complainants, took them to the 3 rd accuseds house and severely assaulted them. The court held that at the time of the assaults, the 3rd appellant was away from her home and did not take part in the assaults. On her return she had learnt of the assaults and by continuing to hold the complainants at her home she had assisted the perpetrators of the assaults in a manner which shoed that she associated herself with the assaults and that she was accordingly guilty as an accessory after the fact to the assaults. The 1st appellant was convicted of four counts of kidnapping, the 2 nd of four counts of kidnapping and four counts of assault with intent to do grievous bodily harm. The 3 rd appellant was convicted of the four counts of kidnapping and as an accessory after the fact to the counts of assault with intent to do grievous bodily harm. There are two approaches to the definition of an accessory after the fact: a. Wide approach requires that the accessory should have associated himself in broad sense with the offence committed. b. Narrow approach requires that the association takes the form of helping the perpetrator to evade justice. The AD preferred the narrow approach. Intention is an essential element of the offence of being an accessory after the fact. It follows that it must be shown but the prosecution that the accused, the alleged accessory, knew that the person whom he helped had committed a crime. The judge held that for the purposes of this case, the connection of dolus eventualis was sufficient to render the 3rd accused criminally responsible. Therefore, if the accused had knowledge of facts which indicated to him the possibility that a crime had been committed by X, and the accused proceeded to help X, reckless of what the position was and with the required object, he would be guilty as an accessory.

7. Incomplete Crimes Attempt Attempt cannot stand alone it is when someone started to or tried to commit an offence S18 (1) of the Riotous Assemblies Act: creates the offence of attempting to commit a Attempt, conspiracy and inducing another person to commit offence: (1) Any person who attempts to commit any offence against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. In terms of CL, attempt itself is a crime. A person can be convicted of attempting to commit a crime in two instances: o o o Attempt itself is completed; or Attempt is not completed. S v Schoombie: attempts seem to fall naturally into two classes: In respect of a non-completed attempt, must look at how far removed the In respect of a completed attempt, the proximity or remoteness is not

but was not able to complete it. statutory offence.

attempt is from the completion. relevant. Completed Attempts R v Nhlovo (an example of how the courts shouldnt look at this crime)

The accused gave Nhlana a packet containing arsenite of soda which he called medicine, and which he told Nhlana to put into the food of Jacob. Nhlana, however, handed the poison to Jacob himself. Accused was convicted of attempted murder. In the American case, Hicks v Commonwealth, it is laid down that an attempt to commit a crime is compounded of two elements (1) the intent to commit it; and (2) direct ineffectual act done towards its commission. Therefore the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.

The court held that it is impossible to lay down any general rule which is applicable to all cases when drawing the line between acts which are remotely and those which are immediately connected with the fulfilment of a crime. But the courts said that mere acts of preparation, although done with criminal intent, do not amount to attempts. The mere obtaining of the poison by the poisoner coupled with an intention on his part to compass the death of Jacob did not constitute an attempt on his part to murder his intended victim. It is clear that Nhlana never intended to carry of Nhlovos instructions for he straightaway took the poison and gave it to Jacob himself. The crime, therefore, was no nearer, but was actually further, from being committed than if the prisoner had procured the poison with the intention of himself putting it into Jacobs food = an attempt. Had Nhlana actually put the poison into Jacobs food but had nevertheless failed to accomplish the purpose of killing him, it is clear that the accused would have been guilty of an attempt. It was held that the accused should not have been convicted and the conviction was set aside. S v Laurence

The appellant was convicted of contravening provisions of the Suppression of Communism Act by publishing statements made by Sobukwe. The appellant compiled an article based on an interview he had with Sobukwe. The appellant then attached the article to a Johannesburg newspaper, wrote a letter to a London correspondent requesting him to send the article to The Observer. Some time later the Commissioner of Police in Johannesburg received a letter from London containing the newspaper and the Sobukwe article which were originally addressed to the London correspondent. The appellant knew that The Observer would be sent to South Africa, as usual, containing his article, and therefore would have indirectly published his article in this country. Appellant argued that he could not achieve his purpose of publishing the article as a number of further acts had to be completed over which the appellant had no control, namely (a) the letter had to reach his correspondent in London; (b) the correspondent had to agree to pass on the article to The Observer; and (c) if published, The Observer had to reach its readers in South Africa. Since the letter had been intercepted and, the appellant purpose was frustrated prematurely his conduct remained in the realm of preparation and did not become

sufficiently closely connected with the ultimate commission of the offence so as to constitute an attempt. The fact that the appellant made the article available and offered it for publication shows that he took the necessary steps. He did everything which he set out to do; he could do no more and dropped out of the picture after he had completed his self-imposed task. Therefore, the role played by the appellant clearly constituted a completed attempt. Uncompleted Attempts The court must always examine the proximity to the completion. There must be an intention to complete the crime on the accuseds behalf. An accused

can never negligently attempt to do something, e.g. cannot attempt to commit culpable homicide. Interrupted attempt An act of preparation generally no attempt; or An act of consummation or execution of the crime guilty of attempt. The question is: where does one end and the other begin? o Acts of consummation: R v Schoombie

Accused went to a shop with petrol and a tin containing inflammable material; he placed the tin against the door of the shop and poured the petrol into and around it in such a way that the petrol ran under the door into the shop and that he was at this stage interrupted by the arrival of a constable. The accused was convicted of attempted arson. The accused stated that preparations had been made for committing the crime of arson, but that such preparation shad not gone so far that they could be regarded in law as an attempt to commit arson. It was claimed that attempts fall into two classes: a) Those in which the wrongdoer, intending to commit a crime, has done everything which he set out to do but has failed in his purpose either through lack

of skill, or of foresight, or through the existence of some unexpected obstacle, or otherwise, b) Those in which the wrongdoer has not completed all that he has set out to do, because the completion of his unlawful acts has been prevented by the intervention of some outside agency. With regard to the last class, there is intent to complete the commission of a crime, forming part of a series of acts which would constitute its commission if they were not interrupted. In Hicks v Commonwealth an attempt must approach sufficiently near to the crime intended to be committed to stand either as the first or some subsequent step in a direct movement towards the commission of the offence after the preparations are made. Therefore, it seems that in the case of interrupted crimes an attempt to commit such crime is proved when the Court is satisfied from all the circumstances of the case that the wrongdoer, at the time when he was interrupted, intended to complete the crime and that he had at least carried his purpose through to the stage at which he was commencing the consummation. Commencement of consummation test was laid out; The proximity of consummation to crime relates to: 1) Time the consummation began 2) Place 3) Natural order of things or course of events 4) Retention of control over events by the accused 5) State of mind of the accused 6) Practical common sense Held the court should lean towards giving a wide interpretation to the phrase commencement of the consummation by including in such consummation all the last series of acts which would constitute a continuous operation, unbroken by intervals of time which might give an opportunity for reconsideration. Held the placing of the tin and the pouring of the petrol were acts which can properly be regarded as forming part of one continuous operation of setting the

building on fire, and not as mere acts of preparation for a subsequent setting on fire. Therefore, there was evidence that the accused was guilty. Change of mind and voluntary withdrawal If a person changes their mind or voluntarily withdraws before the commencement of If a person changes their mind or voluntarily withdraws after the commencement of

consummation, there is no liability. consummation, there is no defence and so the accused is liable. R v Hlatwayo

The accused, a domestic servant, put caustic soda in porridge which was being cooked for her employers, with the intention of poisoning them. She was seen by another employee, who threatened to tell on the accused. The accused thereupon emptied the pot. She was convicted of attempted murder. Question: was the act of putting the poison into the porridge an attempt? The court said that it had to decide whether this act reached far enough towards the accomplishment of the poisoning to amount to the commencement of the consummation. The evidence showed the employers were still in their rooms, but at anytime they would have come into the kitchen and gotten a hold of the porridge. The accused argued that she changed her mind and that the mere putting of the poison in the porridge did not amount to an attempt. She claimed that the changed her mind of her own free will. The judge held that this does not pardon her from all the preparations and the fact that she intended to commit the offence. The test laid out was the same as for interrupted attempt it all depends at what stage he changed his mind: o o If he changed his mind before his acts amount to an attempt (before they are the If he changed his mind at a stage where his conduct already amounts to an commencement of the consummation), then he is not guilty of attempt. attempt, then it does not avail him to say that he changed his mind and desisted form his purpose. Held the act of the accused, before she threw the porridge away = commencement of the consummation, therefore amounted to an attempt. Appeal dismissed.
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Conspiracy (not examinable) S18 (2)(a) of the Riotous Assemblies Act

Any person who (a) or (b) incites, instigates, commands, or procures any other person to commit, any conspires with any other person to aid or procure the commission of or to commit;

offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. S v Alexander

Incitement (not examinable) S18 (2)(b) of the Riotous Assemblies Act

S v Nkosiyana