Professional Documents
Culture Documents
1.1
1.2
1.3
1.4
1.5
1.6
2
2.1
3
3.1
3.2
3.3
3.4
3.5
4
5
5.1
5.2
5.3
5.4
5.5
5.6
5.7
Theories of Punishment
Retributive theory
Preventative theory
Individual deterrence
General deterrence
Reformative / Rehabilitation theory
Combination Theory
South African Criminal Law
Introduction
Elements of Criminal Liability
Act or conduct
Compliance with the definitional elements of the crime
Unlawfulness
Culpability
Sequence of investigation into presence of elements
Crimes and delicts
Principle of Legality
Concept
Ius Acceptum
Ius Praevium
Ius Certum
Ius Strictum
Principle of Legality in Punishment
Summary
6
6.1
6.2
6.3
7
7.1
7.2
7.3
7.4
7.5
8
8.1
8.2
8.3
8.4
8.5
8.6
8.7
9
9.1
9.2
9.3
The Act
What constitutes an act?
Factors excluding voluntariness of an act
Omissions
Definitional Elements and Causation
Formally & Materially defined crimes
Causation
Principles applied to determine causation
Courts approach to Legal Causation
Causation: Summary
Unlawfulness
Private defence
Necessity
Consent
Right of Chastisement
Obedience to Orders
Official Capacity
Triviality
Culpability
Criminal Capacity
Mental Illness
Youthfulness
10 Intention (dolus)
10.1
Forms of intention
10.2
Proof of intention: Direct or Indirect
10.3Intention directed at the circumstances included in the definitional elements
10.4
Intention with regard to unlawfulness
10.5
Intention v Motive
11 Mistake
11.1
Mistake must be material
11.2
Mistake relating to the Chain of Causation
11.3Aberratio ictus: Going astray of the blow does not constitute a mistake
11.4
Mistake relating to unlawfulness
12 Negligence (Culpa)
12.1
Definition of Negligence
12.2
Subjective Factors
12.3
Negligence and Intention
12.4
Conscious and Unconscious Negligence
12.5
Exceeding the bounds of Private Defence
13 The effect of intoxication on liability
13.1
Involuntary Intoxication
13.2
Voluntary Intoxication
13.3
Intoxication & Culpable homicide
13.4
Effect of intoxication on punishment
Delict
State prosecutes.
5. Principle of Legality
5.1 Concept
First question to be asked is whether the type of conduct allegedly committed by him is recognised by the law as a
crime.
Principle of legality is contained in section 35(3)(1) of the Constitution of the Republic of South Africa 108 of 1996.
An accused may
1. not be convicted of a crime
a. unless the type of conduct with which she is charged has been recognised by the law as a crime
b. in clear terms
c. before the conduct took place
d. without it being necessary to interpret the words in the definition of the crime broadly in order to
cover the accuseds conduct; and
2. if convicted, not be sentenced unless the sentence also complies with the four requirements set out above
under 1(a) to (d)
1.Summary
Principle
Effect on punishment
ius acceptum
ius praevium
ius certum
ius strictum
6. The Act
Act' is sometimes referred to as positive conduct or commission (or its Latin equivalent commissio) and an
omission (or its Latin equivalent omissio) is sometimes referred to as negative conduct or failure to act.
Punishment of omissions is more the exception than the rule, writers use act in a wide sense as referring to both
an act and an omission.
6.1 What constitutes an act?
1. Thinking <> crime: some act (i.e. speaking re conspiracy) is required.
2. Act must be a human act or omission, except where a human creates a crime through the agency of an animal.
3. Act or conduct must be voluntary: The conduct is voluntary if X is capable of subjecting his bodily movements
to his will or intellect.
6.2 Factors excluding voluntariness of an act
Absolute force
Natural force
Automatism
6.2.1 Absolute force (vis absoluta)
X overpowers Y and forces Y to commit a crime: Y has not committed an act.
Not be confused with relative force: X holds a gun to Ys head and tells Y to shoot Z = relative force.
Difference between absolute and relative force lies in the fact that absolute force excludes X's ability to subject his
bodily movements to his will or intellect, whereas this ability is left intact in cases of relative force.
6.3 Omissions
6.3.1 General rule
An omission is punishable only if there is a legal duty on X to act positively.
Case: Minister van Polisie v Ewels 1975 (cf Cases).
6.3.2 Legal duty: specific instances
1. A statute may impose a duty on someone to act positively.
a) Tax return, not leave the scene of a car accident, etc.
2. A legal duty may arise by virtue of the provisions of the common law
a) An act of omission when discovering a planned act of treason is equivalent
to an act of high treason.
3. A duty may arise from an agreement.
a) Railway crossing, Pitwood
4. Where a person accepts responsibility for the control of a dangerous or
potentially dangerous object, a duty arises to control it properly.
a) Baboon escaped from cage, bit child, Fernandez
5. A duty may arise where a person stands in a protective relationship to
somebody else.
a) Assault on a child, mother did nothing, S v B 1994
6. A duty may arise from a previous positive act.
a) Lighting dry grass, have to put it out
7. A duty may sometimes arise by virtue of the fact that a person is the
incumbent of a certain office.
a) Minister van Polisie v Ewels(cf Cases); S v Gaba(cf Cases)
8. A legal duty may also arise by virtue of an order of court.
a) Not paying maintenance as stipulated by a court.
6.3.3 Defence of impossibility
The objective impossibility of discharging a legal duty is always a defence when the form of
conduct with which X is charged is an omission.
7.2 Causation
In the vast majority of cases of materially defined crimes which come before the courts, determining
whether X's act was the cause of the prohibited condition does not present any problems.
Problems in terms of causation usually arise in connection with murder & culpable homicide.
Question to ask is: did the act precipitate the death.
Cases: Makali 1950, Hartmann 1975
7.3 Principles applied to determine causation
7.3.1 Basic Principle
To determine whether there is a causal link between Xs act and the prohibited condition 2 requirements
must be met:
1. It must be clear that Xs act was the factual cause of Ys death
2. It must be clear that Xs act was the legal cause of Ys death
Thus:
Causal link = factual causation + legal causation
7.3.2 Factual Causation (conditio sine qua non)
An act without which the prohibited situation would not have materialised
Must be able to say: but for the act, the prohibited condition would not have happened
An act is a conditio sine qua non for a situation if the act cannot be thought away without the
situation's disappearing at the same time.
Cases: Makali 1950, Mokoena 1979, Minister v Polisie v Skosana 1977
8. Unlawfulness
Conduct is unlawful if it conflicts with the boni mores or legal convictions of society.
In order to determine whether conduct is unlawful, one must therefore enquire whether the
conduct concerned conflicts with the boni mores or legal convictions of society. The grounds
of justification must be seen as practical aids in the determination of unlawfulness.
Satisfying the definitional elements is not the only general requirement for liability:
next step is to determine whether act is unlawful.
Grounds of justification excludes unlawfulness, i.e.:
1. Private defence
2. Necessity
3. Consent
4. Official capacity
5. Parents right of chastisement
Cannot define unlawfulness as absence of grounds of justification due to:
1. No limited number of grounds of justification
2. Each ground of justification has its limits
Cases: Fourie 2001, Clark v Hurst 1992
Unlawfulness is usually determined without reference to X's state of mind. Whether he
thought that his conduct was lawful or unlawful is irrelevant. What he subjectively imagined
to be the case comes into the picture only when the presence of culpability has to be
determined.
8.1.1.2 The attack must be directed against interests which, in the eyes of the law, ought to be protected
Private defence can also be used to protect:
1. Property (Ex parte die Minister van Justisie: in re S v Van Wyk 1967)
2. Dignity (Van Vuuren 1961)
3. Preventing unlawful arrest (Mfuseni 1923)
4. Preventing attempted rape (Mokoena 1976)
8.1.1.3 The attack must be threatening but not yet completed
X can attack Y only if there is an attack or immediate threat of attack by Y against him. Private defence is not a means of exercising
vengeance; neither is it a form of punishment. For this reason X acts unlawfully if he attacks Y when Y's attack upon him is already
something of the past.
8.1.2 Requirements of the defence
8.1.2.1 It must be directed against the attacker
8.1.2.2 The defensive act must be necessary
X can only rely on private defence if the ordinary legal remedies do not afford him protection.
Law sometimes defines a duty to flee.
1. This must not be done if :
The attacked person puts themselves in danger when fleeing
2. This must be done if:
The only other alternative is to kill the attacker
3. This must not be done if:
The attacked person is in their home or place of business
4. This must not be done if:
The attacked person is an on-duty policeman.
8.1.2.3 There must be a reasonable relationship between the attack and the defensive act
There ought to be a certain balance between the attack and the defence.
Reasonable relationship between attack & defence is determined by:
1. The relative strength of parties
2. The sex of the parties
3. The ages of the parties
4. The means they have at their disposal
5. The nature of the threat
6. The value of the interest threatened
7. The persistence of the attack
8.2 Necessity
A person acts out of necessity and her conduct is therefore lawful if she acts in the protection of her own or
somebody else's life, physical integrity, property or other legally recognised interest which is endangered by a
threat of harm which has already begun or is immediately threatening and which cannot be averted in any other
way; provided that the person who relies on the necessity is not legally compelled to endure the danger, and the
interest protected by the act of defence is not out of proportion to the interest threatened by such an act.
Requirements for a plea of necessity
1. legal interest threatened (property, physical integrity)
2. may also protect another
3. emergency already begun but not yet terminated
4. may rely on necessity even if personally responsible for emergency
5. not legally compelled to endure danger
6. only way to avert danger
7. conscious of fact that emergency exists
8. not more harm caused than necessary
Only cases of relative compulsion may amount to situations of necessity.
8.2.1 Necessity v Private Defence
1. Origin
a. Private defence: unlawful attack
b. Necessity: unlawful human act or chance circumstances
2. Object at which the act is directed
a. Private defence: directed at unlawful human attack
b. Necessity: directed at interests of another innocent 3rd party or amounts to violation of a
legal provision
If X acts in a situation of necessity, the act is lawful.
For a plea of necessity to succeed, it is immaterial whether the situation of emergency is the result of human
action (i.e. coercion) or chance circumstances
Case: S v Goliath 1972
9. Culpability
Mens rea = fault.
The mere fact that a person has committed an unlawful act which complies with the definitional elements and which is unlawful is not
yet sufficient to render him criminally liable: X's conduct must be accompanied by culpability.
Will be the case if he has committed the unlawful act in a blameworthy state of mind.
Unlawfulness v Culpability:
Unlawfulness: Agnostic to personal characteristics of perpetrator.
Culpability: Personal characteristics of perpetrator taken into consideration.
Person must be endowed with criminal capacity before person has acted culpably.
X must have acted either intentionally or negligently.
Thus:
culpability = criminal capacity + (intention or negligence)
The culpability and the unlawful act must be contemporaneous.
No crime is committed if culpability only existed prior to the commission of the unlawful act, but not at the moment the act was
committed, or if it came into being only after the commission of the unlawful act. (Case: Masilela 1968)
9.1 Criminal Capacity
A person is endowed with criminal capacity if he has the mental ability to
1. appreciate the wrongfulness of his act or omission, and
2. act in accordance with such an appreciation of the wrongfulness of his act or omission
9.1.1 Criminal Capacity v Intention
The question whether X acted intentionally or negligently arises only once it is established that he had criminal capacity.
Criminal Capacity:
Connected with mental abilities
Intention:
Presence or absence of a certain attitude or state of mind
Not knowing something is unlawful means that X acted without intention, not that he is without criminal capacity.
9.3 Youthfulness
Children under 7 cannot have criminal capacity: can never lead to a conviction of any crime.
Between 7 & 14: children are rebuttably presumed to lack criminal capacity: may lead to a conviction of a crime,
provided state rebuts the presumption of criminal incapacity beyond reasonable doubt.
Sometimes a child lacking criminal capacity is referred to as doli incapax.
Person lacking criminal capacity because of youth cannot be convicted as an accomplice to a crime: can however
be used as an innocent instrument in the commission of a crime by another.
9.3.1 Test to determine criminal capacity of children
Same as general test for criminal capacity:
1. the ability to distinguish between right and wrong (cognitive mental faculty)
2. the ability to act in accordance with such an insight (conative mental faculty)
Courts investigate capacity of child (Mbandla 1986).
However: when children are under the influence of older persons, court has been loathe to convict children under
14 years.
9.3.2 Rebutting the presumption of criminal non-capacity
The closer a child is to 14, the weaker the presumption that he lacks criminal capacity.
It must be clear in the context of the case that X understood that what he was doing was wrong, not just that he
knows the difference between right and wrong.
Easier to rebut with common law crimes such as assault & theft than technical statutory crimes.
Court must take into account: character of the crime, conduct of the child in determining whether state has
rebutted the presumption.
11. Mistake
Mistake nullifies intention. If X was not aware of all the factors of intention (act; existence of all the circumstances set out in the
definitional elements; unlawfulness), X could not have committed a crime.
The test to determine whether mistake excludes intention is subjective.
Mistake need not be reasonable: The question is not whether a reasonable person in X's position would have made a mistake. The
test in respect of intention is subjective. No room for objective criterion such as reasonableness due to Modise 1966, Sam 1980.
Thus Xs characteristics, superstitions, etc need to be taken into account to determine whether intention is excluded due to mistake.
11.1 Mistake must be material
A mistake can exclude intention (and therefore liability) only if it is a mistake concerning an element or requirement of the crime other
than the culpability requirement itself. These requirements are:
1. the requirement of an act
2. a requirement contained in the definitional elements, or
3. the unlawfulness requirement
Error in objecto has to nullify a definitional element of the crime in order for it to be used as a defence. Killing the wrong person is still
a crime, irrespective of the intention.
11.2 Mistake relating to the Chain of Causation
Can occur only in the context of materially defined crimes, i.e. murder.
In Goosen 1989 the Appellate Division held that a mistake relating to the causal chain of events may exclude intention, provided the
actual causal chain of events differed materially from that envisaged by X.
This is pretty much rubbish, because Nair and Lungile, heard by the same court, did not rely on Goosen when they could have.
11.3 Aberratio ictus: Going astray of the blow does not constitute a mistake
No such thing as aberratio ictus rule: merely a description of a factual situation.
2 ways of dealing with this:
11.3.1 The transferred culpability approach
X wished to kill a person. Murder consists in the unlawful, intentional causing of the death of a person. Through her conduct X in fact caused the
death of a person.
In the eyes of the law X intended to kill Z, because X's intention to kill Y is transferred to her killing of Z, even though X might perhaps not even
have foreseen that Z might be struck by the blow.
Doctrine of transferred intent: X's intent in respect of Y's killing is transferred to her killing of Z.
11.3.2 The concrete culpability approach
Preferred method.
Apply the ordinary principles relating to intention: dolus eventualis.
Thus it is not murder but culpable homicide on aberratio ictus.
Reasons for preference:
1. Test for intention is subjective: thus difficult to imagine intent with aberratio ictus.
2. Transferred culpability amounts to versari in re illicita which has been rejected by our courts.
11.3.3 Aberratio ictus cases
Cases: Mtshiza 1970
Case decided that:
1. X will normally always be guilty of attempted murder in respect of Y that is, the person she wished to, but did not, kill.
2. X's liability in respect of the person actually struck by her blow:
a. If she had foreseen that Z would be struck and killed by the blow, and had reconciled herself to this possibility,
she had dolus eventualis in respect of Z's death and is guilty of murder in respect of Z.
b. If X had not foreseen the possibility that her blow might strike and kill someone other than Y, or, if she had foreseen such a
possibility but had not reconciled herself to this possibility, she lacked dolus eventualis and therefore cannot be guilty of murder.
c. Only if it is established that both intention (in these instances mostly in the form of dolus eventualis) and
negligence in respect of Z's death are absent on the part of X, will X be discharged on both a count of murder and one of
culpable homicide
Intoxication can be taken into account by the court in sentencing X, resulting in a more lenient
punishment.
Will not happen, however, in a crime where intoxication is an element of the crime (driving under the
influence).
Court can impose a heavier punishment, i.e. a person knew that drinking made him aggressive
Where the form of culpability involved in the offence is negligence, consumption will be regarded as an
aggravating factor.
1.Glossary
supra
Above
infra
Below
lex talionis
retribution in the sense of vengeance, an eye for an eye and a tooth for a tooth
ius acceptum
the law which we have received, or the rule that a court may find an accused guilty of a crime only if
the kind of act performed is recognised by the law as a crime
ius praevium
previous law, or the law which already exists, or the rule that a court may find an accused guilty of
a crime only if the kind of act performed was recognised as a crime at the time of its commission
ius certum
clear law, or the rule that crimes ought not to be formulated vaguely
ius strictum
strict law, or the rule that a court must interpret the definition of a crime narrowly rather than
Broadly
no punishment without a legal provision, or the application of the rules of legality to punishment
ex post facto
actus reus
commissio
omissio
vis absoluta
absolute compulsion
vis compulsiva
relative compulsion
novus actus
interveniens
boni mores
error in negotio
error in persona
negotiorum gestio
in loco parentis
mens rea
lucidum intervallum
delirium tremens
the name of a recognised form of mental illness caused by the chronic abuse of liquor
dolus
Intention
dolus directus
direct intention
dolus indirectus
indirect intention
dolus eventualis
a form of intention in which X foresees a possibility and reconciles himself to such possibility
error in objecto
aberratio ictus
culpa
negligence
bonus paterfamilias
literally the good father of the family; in practice the reasonable person
diligens paterfamilias
literally the diligent father of the family; in practice the reasonable person
the situation in which X intentionally drinks liquor or uses drugs to generate enough courage to
commit a crime
versari in re illicita
literally to engage in an unlawful activity; in practice the rule (rejected by the Appellate Division)
that if a person engages in an unlawful activity he or she is criminally liable for all the consequences
flowing from the activity, irrespective of whether there was in fact culpability in respect of such
conduct.