CRIMINAL LAW 171

STUDY NOTES

1. GENERAL INTRODUCTION
1.1.

What is Criminal Law?

Defines certain forms of conduct as a crime

Provides for punishment
Elements
o Conduct (actual physical act)
o Causation
o Unlawfulness (private defence)
o Criminal capacity (mental illness; temporarily blinded by anger)
o Fault (intent/negligence)
1.1.1. Definition of a Crime

Conduct that society believes to be wrong / disapproves of

I.e. conduct the community thinks deserves punishment
1.1.2. Definition of Punishment

Deprivation/infliction or harm/suffering
Expression of communitys disapproval/condemnation
Why punish?
o Prevention of crime (deterrent)
o Rehabilitation/reform (embitterment)
o Retribution/revenge
o Restorative justice? (restoring position prior to crime)
1.1.3. Function of Criminal Law

Social mechanism to coerce members of society, through threat of pain

and suffering, to abstain from conduct harmful to societys interests
Aims to promotes individual autonomy and the welfare of society (and its
members) by establishing and maintaining peace and order and
advancing human rights

1.2.

What is a Crime?

Conduct that harms the following interests:

1.2.1. Human/Civil Rights

Basic human rights such as right to life, bodily integrity, personal safety
and property are protected
1.2.2. Individual Autonomy / Responsibility

Principle: each person should be treated as responsible for his/her own

behaviour; subjective approach to SA criminal law (personal
circumstances around committing crime)

1.2.3. Collective Welfare

Statutory regulations that maintain standards of safety, health, welfare,

environment etc.
Public welfare offences
Criticism
o State = paternalistic: often protection from harm for the individual who is
punished by the criminal prohibition
o Is it justified to protect people against themselves?

1.2.4. Maintenance of the Government of the State

Crimes protecting interests pertaining to structures and institutions by which

government is carried on
Examples: treason, sedition protect the government against unconstitutional
subversion and overthrow (e.g. coup detat), contempt of court, corruption

1.2.5. Public Sensibilities / Morality

Cultural and religious beliefs and values

o Importance is endorsed by invoking the criminal sanction against conduct
threatening such values
Examples: incest, flashing in public
Criticism
o Should criminal law be used to punish immorality merely because it is
immorality (i.e. conduct that is otherwise not harmful to others)?
o Also: whose morality is to be enforced?

1.3.

Criminalisation

Criminalisation is a process whereby a competent lawmaker defines ad prohibits

a conduct as crime so as to express societal condemnation, sometimes to such
a degree as to over-criminalise.

Q: Difference between common law and statutory crimes

1.3.1. Common Law Crimes

Have existed from earliest times come from old SA legal sources
Closed list: no new crimes can be added
Serious crimes against the person, property and interests of the state
Examples: murder, rape, beastiality, fraud
Legislature can remove common law crimes e.g. homosexuality and adultery
used to be common law crimes

1.3.2. Statutory Crimes

Enacted by legislature/parliament
New types of conduct continue to be declared to be a crime
N.B. all crimes must be tested against the Constitution (may not be
incompatible with it)

Q: why is it not adequate to define crimes materially only?

1.3.3. Material Definition of a Crime

Inherent quality of badness decisive conduct regarded as morally wrong

o BUT:
o Not all criminal conduct is morally wrong / bad (e.g. not paying tax,
putting seatbelt on)
o Not all morally wrong conduct is punishable as a crime
Acts that are harmful to society
o BUT:
o Not all crimes cause harm (e.g. smoking dagga)
o Not all harmful conduct is punishable as a crime
Conclusion
o Inherently identify conduct as a crime
o Societys views of what is wrong and deserving of punishment varies
according to time and place
o Problem: reflects societies values and does not identify characterises that
identify conduct as a crime

1.3.4. Procedural Definition of a Crime

What are the formal legal procedural consequences of the conduct?

If the consequence is prosecution and the infliction of punishment, the conduct
is a crime
Thus, conduct is a crime because a competent law-making pronounced it to be
one (not based on morality)
Return to original definition
Therefore conduct is a crime and prescribes punishment

1.3.5. Adverse Effects of Over-Criminalisation

Crisis? More and more crimes created
a) Lessening criminal laws authority: legitimacy crisis
b) Stigmatising individuals as criminals
- Social: permanent record
c) Encouraging crime
- 1920s prohibition: increase in organised crime in USA
d) Overloading the criminal justice system
- Maintenance of judiciary system (expensive)
- Jails: overcrowding

2. THEORIES OF PUNISHMENT
Cases
S v Tabethe 2009
DPP v Tabethe
(SCA)

2.1.

2011

Absolute or Retributive Theories

Punishment important, end in itself

Criminals deserve punishment
Underlying rationale: persons who have caused harm should themselves suffer
harm
Not merely revenge: retribution must be proportional to harm caused

2.1.1. Appeasement of Society: Revenge?

Oldest justification for punishment

POD: person who caused harm should also suffer
NB: proportionality punishment must fit the crime
Reason:
- appease society public demands
- Society must punish to prove condemn, express revulsion
- Restore society order

Disadvantages: claim for revenge

o Can they explain situation if victim does not desire vengeance?
o Should victim be consulted to determine what punishment of offender
would satisfy their thirst for revenge?
Advantages: vengeance due to public demand
o Demand for revenge is satisfied
o Public do not lose respect for the law
o People will not view it as necessary to exact private revenge

2.1.2. Atonement by Offender

Influence of church: purging of offenders guilt restoring offender to a state of

moral goodness
Pays debt to society

2.1.3. Denunciation of Conduct

E.g. drunken driving list

Societys indignation/disapproval is formally proclaimed, recorded
Society must punish to show that crime is not condoned
Is used to justify the infliction of punishment simply because it is punishment

2.1.4. (Just) Desert

Crime is anti-social conduct

It disturbs the moral order of society

Punishment restores order/balance because of its denunciatory nature

Proportionality between crime and punishment is central: punishment must fit
the crime

2.2.

Relative or Utilitarian Theories

Punishment secondary, means to an end

Socially beneficial
Underlying rationale: punishment has a social benefit for society and is
therefore justified

2.2.1. Prevention / Incapacitation

Makes it impossible/prevents offenders from committing more crimes

Criticism:
o Usually only temporarily/partially effective
o Is only justifiable if offender is likely to reoffend unless restrained (not
always the case)
o Aim is negative and limited
BUT: may protect the community

2.2.2. Deterrence

Persuading citizens that they should not commit crimes

o Punishment = pain/suffering
o Therefore people will avoid doing that which will expose them to
punishment
o Therefore they will avoid committing crimes

2.2.2.1.

Teaches offender a lesson so that he will be deterred from repeating his offence
(e.g. suspended sentence)
BUT: what about convicted persons who commit another crime?
o If recidivism (reoffence) rate is high (2nd/3rd convictions), = ineffective; not
detterent

2.2.2.2.

Individual Deterrence

General Deterrence

Persons threatened with punishment will abstain from committing crime

General deterrence is the theory most favoured by SA courts today
Objections
o Unjust to punish individuals to deter others from crime
o Presumes that we are rational beings who always think before we act

2.2.3. Reinforcement

Punishment reinforces prohibition contained in formal definition of crime

Creates/reinforces citizens respect for criminal law and inhibits contraventions
of it
Has same function as denunciation
Sees punishment as an educational medium
Punishment is not so much to deter potential offenders as to induce an attitude
of obedience to criminal law prohibitions

2.2.4. Reform or Rehabilitation

S v Tabethe 2009 and DPP v Tabethe 2011 (SCA)

Offender can be rehabilitated by treatment and training
Idea that delinquent may be re-educated to make him a useful member of
society
Readjustment of criminal to demands of society by making punishment fit
criminal rather than the crime
Objections
o To detain offender until he has been reformed may involve punishment
out of proportion to crime
o What about the protection of society/deterrence?
o Idea that criminal conduct is a disease that can be cured

2.3. Which Theory?

Theory of desert = only true theory of punishment that explains the underlying
reason/justification for punishment
Justice, principle of legality require that only those who have committed crimes
deserve to be punished
BUT: utilitarian theories would allow infliction of punishment on persons who
had not committed any crime!
Each theory has truths and flaws
Court uses combination
N.B. Distinguish between JUSTIFICATION for punishment in general and
PURPOSE of punishment in particular instance

Considerations

Judges and magistrates take into account when applying punishment theories:
a) Seriousness of the crime
b) The interests of society and
c) Accused personal circumstances
Often used a combination of theories
Justified the punishment of crimes

Forms of punishment

Imprisonment
Paying a fine
Community service
Suspended sentence
Others
- Attending anger management classes
- Any form of punishment that is constitutional

Function of punishment theories

The aim of punishment is found in relative theories

The justification for punishments are found in absolute theories

3. VALUES of
LEGALITY

the

CRIMINAL

LAW: PRINCIPLE

OF

Case

S v Francis en n ander 1994 (C)

Veldman v Director of Public Prosecutions,

Witwatersrand Local Division 2007 (CC)

3.1.

Introduction

Expansion of State powers

Individual must be protected against the State
Priniple of Legality (LP) as mechanism ensuring that State is not above but
subject to the law no arbitrary punishment
Nullem Crimen, Nulla Poena Sine Lege
o No crime, no punishment without law
o I.e. determination of criminal liability and passing of sentence must
correspond with clear and existing rules of law
o Therefore accused may not be found guilty of a crime and punished
unless his conduct complies with certain requirements

It is a mechanism for

Promoting legal certainty

Preventing arbitrary state punishment
Upholding the constitution and democratic state (including separation of
powers)
Maintaining rule of law in context of Criminal law
Reflecting on the values of the criminal justice system

How?

Prevent state from abusing its power set of rules that limit power i.e. state is
subject to law
POD: there is no crime without a rule of law
Protect from all powerful state
Enshrined in S35 (3)(l) to (n) of Constitution

3.2.

Rules Embodied in the Principle of Legality

1. Ius Acceptum Principle

i. Conduct must be recognised by law as a crime [S35 (3)(l) of
Constitution]
ii. Role of legislature/parliament: make law
iii. Role of courts: N.B. courts have no power to criminalise conduct /
create crimes are bound by law as we have received is to
date: *see relevant definition of a crime
b. Common Law crimes
i. Courts created new common law crimes in past (e.g. public
indecency 1888)
ii. But now a closed list (numerus clausus) of common law crimes

iii. Non-adopted common law crimes may not be revived

1. If common law crimes do not form part of SA law (no
prosecutions) they cannot be recognised by courts (e.g.
conflagration S v Solomons 1973)
2. Courts can adapt existing crimes to meet contemporary
requirements
2. Ius Praevium Principle
Conduct must be recognised as a crime before it took place (principle of
fair warning)
No retrospective force (people will adapt their conduct accordingly)
S 35(3)(1) of the Constitution: right to a fair trial, which includes the
right not to be convicted for an act/omission that was not an offence
under either national/international law are the time it was
committed/omitted.
Application in Masiya v Director of Public Prosecutions 2007(CC)
- Anal penetration was not criminalised as a crime
Now: Sexual Offenders and Related Matters Amendment Act 32 of 2007
- Gender-neutral definition of rape
- Include anal penetration of both females and males
3. Ius Certum Principle
Criminal conduct must be formulated in clear, unambiguous terms [
S35(3) (a)of Constitution]
Not vague, unclear: must not be hard for citizen to realise precisely what
is expected of him
BUT absolute clarity not required
Is impossible to comply absolutely with ius certum requirement: laws
must be interpreted by courts
- Vague terms (e.g. policy considerations, legal convictions of the
community, negligence; reasonable person)
4. Ius Strictum Principle
Conduct of accused must be brought under definition of crime without
interpreting definition too widely
Definition of crimes should be narrowly, not broadly interpreted
Courts may not extend words/concepts in definition of crime by means of
analogy
Accused should be given the benefit of the doubt (interpret in favorem
libertatis in favour of the accused)
If there is doubt whether or not conduct is included in a common law
crime, court should assume it is not included
LEGISLATURE should rather decide whether or not to criminalise such
conduct, not courts
BUT crimes should adapt to meet contemporary requirements
5. Nulla Poena Sine Lege Principle = no punishment without law
S 35 (3) (n) of Constitution: Every accused person has a right to a fair trial,
which includes the right to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence has been changed

10

between the time that the offence was committed and the time of
sentencing
After conviction, imposition of punishment must also comply with 4
principles above I.e. above principles should also be applied when a
sentence is imposed
Nature and extent of punishment should be recognised and prescribed by
common/statute law
Determination of maximum punishments may not be arbitrary, cruel and
unusual punishment
Legislature may usually not decide on precise punishment / prescribe
minimum punishment
NB courts must have discretion to take certain factors into account
i. Personal circumstances of accused, seriousness of crime,
interests of society
ii. NB no retrospective punishments (unless to accuseds advantage)
iii. Application in Veldman v Director of Public Prosecutions (WLD)
2007
Veldman v Director of Public Prosecutions 2007

3.3.

Rationale (Why is P.o.L. so important?)

Constitutional democracy and fairness underlie the P.o.L.

Legal certainty
o Rules should be clear, precise and accessible
o People must know in advance how to behave (principle of fair warning)
Precondition for theories of punishment (P.o.L. = prerequisite for: )
o General deterrence
o Theory of retribution / (Just) desert
Precondition for consciousness of wrongfulness
Link with democratic state
o Role of courts in criminalisation?

3.4.

Practical Application of the Principle of Legality

Crime = conduct which the law (by means of legislature) declares/defines to be

criminal
NB: legislature does not strictly speaking create CRIMES:
o Legislature creates DEFINITIONS of crimes
Crime = when criminal provision is contravened

3.4.1. Role of Courts

Interpret (see ius acceptum)

3.4.2. Role of Legislature / Parliament

Common law crimes

o Numerus clausus: legislature cant add any new crimes
Statutory crimes

3.4.3. Definition of the Crime

11

3.4.3.1.

Definition of the Prescription (legal norm)

Legal rule that indicates what conduct is prohibited

Non-compliance is not a crime per se (i.e. is a mere prohibition)
E.g. you may not travel on a train without a ticket

3.4.3.2.

Criminal Sanction

*NB: Legal norm + criminal norm = valid definition

Legal norm + criminal sanction = valid definition
3.4.3.2.1.

3.4.3.2.2.

Criminalisation Clause (criminal norm)

Clear statement that contravention of the rule of conduct amounts to a crime

E.g. you may not travel on a train without a ticket and anybody contravening
this provision shall be guilty of a criminal offence
Usually has crime or prohibited in sentence

Penalty Clause (criminal sanction)

Nature/measure of punishment that may be imposed on persons convicted of

the crime
E.g. you may not travel on a train without a ticket and anybody contravening
this provision shall be guilty of a criminal offence and punishable upon
conviction with imprisonment for a max period of 3 months or a max fine of
R1000 or both such imprisonment and fine

What happens if one is excluded?

1. Definition of prescription can never be excluded

2. Criminalisation clause included, penalty clause excluded
Punishment is integral part of concept of crime
If legislature does not specify punishment, determination of appropriate
punishment by court
DPP, Western Cape v Prins 2012
3. Criminalisation clause excluded, penalty clause included
Even if prohibited conduct is not criminalised in criminal of law, if there is a
penalty/punishment attached, this has effect of making it a crime
Court decide
4. Both criminalisation and penalty clause excluded
a. Old
cases:
still
a
crime
because
if
definition
of
prescription/command/prohibition was disobeyed this was contempt of
the statute
i. E.g. R v Forlee sale of opium the doing of an act which is
expressly forbidden by legislature upon grounds of public policy
constitutes an indictable offence, even though no penalty be
attached
ii. Criticism of Forlee
1. legislature should correct its own mistakes
2. formulated too widely
3. S v Francis en n ander 1994 escape from rehab centre
Prohibited but not criminalised; goes against principle
of legality to convict

12

Just because it is a prohibited does not make it a

crime

Examples: what of the following is a definition of a crime?

1. It is a crime to commit assault: no penalty clause but criminalisation clause =
crime
2. Dishonesty in relation to examinations is an offence punishable with expulsion
from SU: state is not punishing = not crime (similar to Francis case)
3. Tax evasion is punishable with a maximum fine of R100 000: penalty clause, no
definition = not crime

4. CRIMINAL LAW AND THE CONSTITUTION

Cases

S v Makwanyane and another 1995 (CC)

S v Williams 1995 (CC)

S v Jordan 2002 (CC)

Prince v President, Cape Law Society and others 2002 (CC)

National Coalition for Gay and Lesbian Equality and another v

Minister of Justice and others 1998 (CC)

Masiya v Director of Public Prosecutions, Pretoria and Another

(Centre for Applied Legal Studies and Another, Amici Curiae) 2007
(CC)

S v M 2004

4.1.

Constitution: Bill of Rights

Introduction

Commission of crime infringes upon community interest and human

rights of individuals (victim/s)
Interests and rights are protected by enforcement of criminal
law
BUT enforcement of criminal law also violates/infringes upon the rights
of the individual accused!
NB for weighing up of interests/rights

Example of Fundamental Rights

o
o
o
o
o

Due process rights (s 35)

Equality (9)
Human dignity (10)
Life (11)
Freedom/security of the person (12)

o
o

Including right not to be subject to cruel, inhuman punishment

Privacy (14)
Freedom of expression (16)

Role of the Constitution

o Constitution as supreme law (s 2)
13

o
o

All legal rules, including criminal law ones, must be in line with
Constitution
If it is inconsistent with the Constitution, a legal rule is invalid
and must be declared as such by the courts

S 36 of the Constitution (limitation clause)

o Limitation of rights

S 36(1): The rights in the Bill of Rights may be limited only in

terms of law of general application to the extent that the
limitation is reasonable and justifiable taking into account all
relevant factors + 36(2)

4.2.
Constitutional
Context

4.2.1.

Challenges

in

the

Criminal

Law

Legislation

Statutory crimes or punishments

o Crimes

Prostitution

Sexual Offences Act 23 / 1957

Rights at stake?

S v Jordan 2002
S 11 Criminal Law Amendment Act 32 / 2007
o Now clients are guilty of crime too

Drug offences

Privacy; bodily integrity; equality (why only

prostitutes convicted, not clients?)

Drugs and Drugs Trafficking Act 140 / 1992

Rights at stake?

Religion, choice, expression

Prince v President, Cape Law Society 2002

Punishments

Death penalty

S v Makwanyane 1995
Why unconstitutional? Rights at stake:
o Life; human dignity; equality

(treated

differently discriminated against); not to be

punished in a cruel, inhuman way
Corporal punishment (e.g. whippings)

S v Williams 1995
14

Why unconstitutional? Rights at stake

o Bodily integrity (NB: human

dignity

embarrassing)

4.2.2.

Common Law

Sodomy
o What is it? Consensual/non-consensual male anal intercourse

National Coalition for Gay/Lesbian Equality v Minister of Justice

1998
o Why unconstitutional? Rights at stake?
Right to equality; privacy; human dignity
Indecent assault without consent
Not a crime anymore
Anal rape
o Masiya v Dir. Of Public Prosecutions 2007
o

Common law definition of rape: developed to include anal rape

Common law rape declared unconstitutional not gender

friendly
Rights at stake?
Definition extended to anal entry as well
Role of Sexual Offences Act 32 / 2007 much wider

Bestiality
o What is it? Intercourse with an animal
o S v M 2004
Sexual orientation; no good reason against right to privacy;
basing on mere immorality not enough to justify
criminalisation
Court decided crime not unconstitutional animals cannot
consent

Questions

Euthanasia? assisted suicide

o Active (e.g. cyanide, stabbing, gunshot) vs passive (to let someone
die; e.g. starving, removing pipes)
Others?

Conclusion

All criminal law rules must be in line with Constitution

Therefore Constitution (and the human rights entrenched in it) had great
influence

If crime = constitutional, still a crime; if = unconstitutional, not a crime

15

6.Elements of the Crime: CONDUCT

Cases

S v Erwin 1974

S v Smit 1963

S v Van Rensburg 1987

S v Arnold 1985

S v Chretien 1981 (A) obiter

S v Grobler 1974

R v Miller 1983

S v Fernandez 1966 (A)

S v B en n ander 1994

Minister van Polisie v Ewels 1975 (A)

Minister of Law & Order v Kadir 1995 (A)

Minister of Safety and Security and Another v Carmichele 2004 (SCA)

Minister of Safety and Security v Hamilton 2004 (SCA)

Conduct must be:
1. Human
2. Voluntary (not involuntary unless there is antecedent liability)
3. A positive act (not an omission unless there is legal duty to act
positively)
6.1. Human

Human act excludes thoughts, animals, juristic persons

16

Crime of which accused is charged must:

o Exist in our law
o Accuseds conduct must amount to the conduct prohibited in the
definition of that specific crime
Distinguish:
o Thoughts: not punishable unless physical conduct attached
o Conduct of animals: only if used as instruments human liable
o Acts of juristic persons: s 322 of Criminal Procedure Act

6.2. Voluntary

Voluntary human conduct: autonomous decision

Doctrine of free will:
o People exercise choice about their conduct; therefore they must accept
responsibility for consequences of chosen actions
Therefore, accused is criminally liable only if he/she is able to determine/control
actions by conscious/free will (free exercise of conscious volition)
Involuntary = mind NOT in control of body not liable
Sleep
Vis absoluta (absolute force)
Reflex actions
Intoxication
Epileptic fit
* Unless, Actio libera in causa antecedent liability

6.2.1. Distinguish: Voluntary Conduct & Automatism

Voluntary vs. Involuntary automatism

o Distinguish above conduct controlled by the conscious will from
involuntary conduct
o Legal term for involuntary conduct = automatism (type of defence)
o Distinguish between:
1 Involuntary conduct resulting from pathological automatism i.e.
mental illness (insane automatism)
2 Involuntary conduct due to (any other) non-pathological cause
(sane automatism)

6.2.2. Distinguish: Insane & Sane Automatism

Insane automatism
o Prove mental illness conduct was uncontrollable

Sane automatism: categories

o Accused conscious
Vis absoluta (absolute force power)
Something/someone more powerful than you forces you
physically to act criminally (e.g. a wave in the sea, a strong
man, a wind against window)
No liable as did not exercise own choice

17

Vis compulsive? (relative force)

S v Goliath person was going to kill accuseds family if he
did not help with killing another man involuntary conduct?
You still have a choice albeit a tough one; defence if life v
life if not really justified (see: unlawfulness)
Not being forced = absolute force not a defence in RSA law

Reflex moments (including epileptic fit) or instinctive

conduct
This defence rarely succeeds
S v Erwin 1974
o Man overtaking car but bee flies in window at this
time
o He instinctively moved head and banged against right
side of car; glasses then broke
o He took his hands off wheel instinctively to protect
face; therefore crashed into other vehicle
o Charged with negligent driving; claimed sane
automatism
o Court looked at his evidence (removing of hands) and
said he had thought process, so could have thought
about crashing as well conduct was voluntary
S v Smit 1963
o S driving, 2 passengers on back of bakkie
o 1 passenger knocks on bakkie window turns around,
loses control of car kills knocker (Pieterson)
o Defence: sane automatism
o Court: Smit had thought process - did not succeed
either

Provocation/emotional stress
S v Arnold 1985
o Arnold married to younger lady: infatuated
o She hated his son + mother-in-law couple often
fought over these issues
o During a fight, Arnold fires a short and kills his wife
o Court: she provokes him + he never lied to the police
+ fully co-operated + medical evidence of his state of
mind = conduct was involuntary
o Succeeded did not perform act consciously
o Swayed by his love + honesty + background
S v Eadie 2002 may have changed the position
o SCA effectively restricted provocation as a defence
o Ripple effect on domestic violence + intoxication
related situations

Accused unconscious
Sleep
S v Van Rensburg 1987 [*TEST QUESTION LIKELY]

18

Fell asleep behind wheel (after blood tests at doctor;

low blood sugar, couldnt eat before) crashed into
someone else doesnt remember anything wasnt
warned by doctor
Succeeded medical evidence

o
Epilepsy
Debate whether pathological or non-pathological?
Generally accepted as non-pathological
Hypoglycaemia
S v Van Rensburg *Read
Intoxication
PRESCRIBED: Obiter in S v Chretien 1981
Defence was not applicable in this case
Obiter: Depends on degree of intoxication; no control on
bodily movement from mind; criminal capacity must be
dead drunk
Could lead to involuntary conduct; not freely decided by
courts today though

Why is it necessary to distinguish between pathological and non-pathological

causes:

Insane automatism
o Accused must prove involuntary conduct due to mental illness on a
balance of probabilities
o If accused is found not guilty by reason of insanity he will be detained in
a mental institute State Presidents patient
Sane automatism
o Onus is on the State to prove all elements of liability beyond reasonable
doubt (5 elements)

19

A not guilty verdict is an unqualified acquittal not punished, no legal

consequences (Van Rensberg and Arnold)

Practical example (how to answer in a test)

Facts
X is epileptic. Dr Z tells X to take medication everyday then he will not have
an attack. X has never missed a dose of medication. Dr Z failed to tell X that
if he eats garlic and seafood the effect of the medication will lessen. X goes
to an all-you-can-eat seafood buffet and has an epileptic fit in the car on the
way home. He swerves and kills Y, a pedestrian.
Question
Is X guilty of culpable homicide?
Answer
Legal theory
What is Xs defence?
-

Non-pathological automatism
Show connection to relevant facts: epilepsy

Apply the theory to the facts

-

Case law: Van Rensberg-case

VR succeeded in this case because he was not given sufficient warning
and relied on the defence of automatism
Similar set of facts: not warned epileptic fit in car and criminal conduct

6.3. Liability Based on Prior or Antecedent Voluntary Conduct

6.3.1. Actio Libera in Causa Principle

A person may sometimes be held liable for involuntary conduct

NB: Actio Libera in Causa Principle:
o E.g. A person deliberately + voluntarily gets very drunk to give him
dutch courage in order to commit a crime. At the time the crime is
committed he is so blind drunk he acts involuntarily.
o Is held liable for the prior voluntary act (the decision to commit the
crime) which is causally linked to the unlawful consequence
Prove:
1. Prior voluntary conduct (blameworthy conduct) accompanied by
requisite fault element
2. Conduct must causally link to unlawful conduct
3. Accused must be at fault: intention or negligence evidence
Original form: required actual intention to commit crime
Burchell: no objection to extend to the case of prior legal intention or prior
negligence action can be applicable in other cases not only intoxication
o E.g. S v Grobler 1974 [*TEST QUESTION: compare with other cases S v
Van Rensburg]
o E.g. 2: epileptic deliberately skips medication commits crime while in
epileptic state

20

6.4. Commission or Omission

Can be held liable for omissions if prior conduct, contract, protective

relationship, public office, statute, dangerous thing/animal

6.4.1. Positive Conduct

Must be more than mere thoughts: external/physical manifestation of evil mind

Because every crime is defined ito human conduct in question must be such
that it matches the description in the definition of the crime
GENERAL RULE (point of departure when answering a question)
o Punishable conduct usually consists of doing something (positive act / act
of commission), not in NOT doing something (an omission)
o I.e. there is generally no criminal liability for an omission
Why? Floodgates of liability + maximise personal freedom (e.g.
someone drowns are all witnesses liable?)
o Important distinction between prohibitive (dont do that) and
imperative norms (do that)
o Imperative norm: omission would be punishable
E.g. seeing someone a commit crime general rule: dont have to
report this to police
Exceptions
Legal duty to act *see below
Common law exception: when someone plans to commit
high treason (imperative norm)
Law and morality
o Should distinguish between legal and moral duty
E.g. Joe Soap to save drowning person= moral duty
E.g. Doctor to save a person when off duty = legal duty
o A person is not under legal duty to protect another from harm
o Exceptions to general rule when is there legal duty to act positively?
If accused fails to act positively in circumstances where there was
legal duty to act
NB: legal convictions of community!

6.4.2. Distinguish: Consequence & Circumstance Crime

Consequence crime:
Example: murder

A bodily action (e.g. pointing a gun) that brings about death

Death is not the bodily act of the killer, but rather the physical consequence of
his bodily act

Circumstance crime:
Example: driving under the influence of alcohol

There is no consequence of the driving that must occur before the crime is
committed
All that is required is that the accuseds bodily movements should have
amounted to the driving of a vehicle

6.4.3. Omission or Failure to Act

Two systems of law:
21

1. Impose a general duty to act positively to assist others that are in peril e.g.
France, Italy, Germany
- Those in favour of collective welfare
2. Do not impose such a duty, but rather regard liability for a failure to act as
exceptional e.g. RSA, Canada
- Those in favour of individual autonomy

General rule for omissions

Unlawfulness rather than fault is important in SA law

Law prohibits one from causing harm to another, but does not require one to
benefit from another not required to be each others keepers

South African law

Has crafted broad exceptions: categories of legal duties based upon a flexible
concept of the legal convictions of the community
Also imposed extensive delictual duties on the State to protect persons from
violent crime
All based on theory of accountability dervived from constitutional theory
No common-law duty of general rescue, or even easy rescue but exceptional
instances where have legal duty to act
No duty to: inform police of commission or crime, prevent commission of crime
or rescue drowning person
Use legal convictions of community:
- Use principles in Constitution
- Not unrestrained: otherwise fundamental principles of legality in jeopardy
+ exceptions will become general rules

6.4.4. Liability for Omissions

6.4.4.1. Prior Conduct

NB: not the same as actio in libera causa

Omissio per commissionem (NB) where a person through his own conduct
creates a potentially dangerous situation
Legal duty: to prevent danger from materialising
o R v Miller 1983
- Homeless person slept in a house
- Mattress caught on fire from cigarette
- Failed to put it out - house set on fire
- Court: liable for arson

6.4.4.2. Control of a Potentially Dangerous Thing or Animal

Legal duty: to take precautions to protect 3rd parties from being endangered by
the animal or thing
Liability is independent of any prior conduct on the part of the accused
o S v Fernandez 1966
- Owner of a small shop had a pet baboon
- Baboon escaped from the cage but owner managed to coax the
baboon back into its cage
- Owner failed to fix the hole through which the baboon initially
escaped
- Baboon escaped again and attacked and killed a baby

22

Court: culpable homicide had a legal duty to prevent harm: did

not take measures to ensure the baboon would not harm another
person

6.4.4.3. Special or Protective Relationship

If there is such a relationship towards another, the person may have a legal
duty to take steps to protect that person from harm
Norms of society/legal convictions
Examples
o Parent-child
S v B and Another 1994 [*TEST QUESTION]
2 year old boy assaulted by mothers boyfriend consistently
eventually killed
Mother: failed to protect her child court looked at the
injuries sustained (burns, broken bones etc.) which proved
she did know of the abuse
Court: mother foresaw the possibility that child might be
harmed and did not protect convicted assault
Boyfriend: murder
Parents will also be liable if child starves to death
o Babysitter
o Lifeguard
o Police (NB)
PRESCRIBED: Minister van Polisie v Ewels 1975 [*TEST
QUESTION]
Ewels was assaulted by off-duty police officer at station in
front of other officers that did nothing - minister to be held
liable as policemen have a legal duty to protect citizens
POD: no liability for omissions
But are cases for exceptions: where there is a legal duty to
act positively arising from a protective relationship
Must prevent crime / protect community; exercise control
over police station (crime of assault)
BUT Minister of Law & Order v Kadir 1995
Kadir is driving and a bundle of clothes falls off the back of
the car in front of him: cause accident
Other car comes to collect the clothes and drives off
Police didnt take any details of car with clothes and now
Kadir cannot claim from RAF
SCA: no legal duty
Duty of police = to maintain law and order; not to assist
people to obtain evidence for civil claims (delict)
o

Criticism: The role of the police: Public protector or criminal

investigator? Burchell
- Criticised on grounds of policy and principle
- Restrictive approach to the function and duties of police
- Out of keeping with ethos of Ewels and other cases + constitutional
role of police as a protector of the public (s205 (3) of Constitution)
- Also a setback in broad-based principle that the State must protect
its citizens from harm

23

Carmichele case: police + delictual liability police owe a duty,

derived from Constitution, to protect the general public, women and
children in particular, from violent crimes
Others:
Carmichele v Minister of Safety & Security 2002 NB (Burchell
pg 196-7)
o Coetzee out on bail even though very dangerous,
attempted rape, murder
o Coetzee assaulted Carmichele in her own home
o Carmichele: police and prosecutor had responsibility
to keep people like her safe police should have told
court about his previous actions, given magistrate the
information. They could have prevented the crime.
o Court: agree with Carmichele
- Constitutionally: inflicts on potential victims
right to freedom from violence, right to life,
right to human dignity
o Police + prosecutor: duty to appose bail or inform
court about all the relevant facts (that he was
dangerous)
o State has a duty to protect women and children
o Carmichele: class of potential victims
o She was entitled to claim damages
Minister of Safety & Security v Hamilton 2004
o Mrs Arnold had psychological problems + an alcoholic
o She applied for a firearm licence and received it
o Hamilton + Arnold argument in parking lot and Arnold
shot Hamilton now paraplegic
o Sue Minister but no evidence obtained firearm illegally
but the police did not stop her from obtaining it
should have done an investigation and declined her
application
o Court: is a legal duty to prevent

6.4.4.4. Public Office or Quasi-Public Office

Legal duty arising from office

Examples
o Police fail to report crime = guilty of being an accessory to the crime
o Ambulance services
o Fire brigade
o Jailer/gaoler
Minister van Polisie v Ewels 1975
Carmichele v Minister of Safety & Security 2002
Minister of Safety & Security v Hamilton 2004

6.4.4.5. Statute / Law

Prohibitive norm arising from law

Legal duty to act created by legislation
o E.g. legal duty on driver of motor vehicle involved in an accident to stop,
ascertain the nature and extent of injuries or damages and render
assistance

24

E.g. employers duty to provide and maintain a safe working environment

E.g. corruption
E.g. income tax (have to pay), have to report accidents, sexual offences
(NB: required to report abuse of child if parent)
o S 54 of Act 32 of 2007: obligation to report sexual offences against
children or mentally ill person very specific provision
o If a person has knowledge or belief that assault take place and fails to do
so for a child = 5 years in jail, mentally ill person inform police officer
Common Law
o E.g. treason (must report if you know someone planning to commit high
treason)
Court Order
o E.g. contempt of court (if you dont pay maintenance order; failure to
appear before court)
o
o
o

6.4.4.6. Contract or Undertaking

Legal duty may be assumed by agreement (express or implied)

o E.g. doctor-patient doctors also under legal obligation to inform patient
of material risks in surgery and treatment

Defence against legal duty to act?

-

Impossibility: physically impossible to comply with the law

Snyman disagrees

States legal duty to protect persons from violent crimes:

-

Basis for liability for failing to act: legal convictions of the community +
interpretation must include the values and right protected in the Constitution
Idea of the police as the protectors of the public received support: Ewels-case
Trend: CC Carmichele + SCA- Hamilton = place legal duty on State, acting
through the police, to protect persons, particularly the vulnerable, from violent
crimes
Shows a development of the common law
Central issue: whether breach of duty could lead to criminal liability and not
only delictual liability
Civil liability cases: Carmichele, Hamilton
Each cases shows the significance of limiting factor: SA police are
understaffed, under-funded and demonstrate poor criminal detection and
prosecuting record
Unrealistic to add more legal duties
Degree of enforceability of socio-economic rights: cannot expect more of
the State than is achievable within its available resources (Grootboom
case)
However, theoretically possible for State official to commit assault or culpable
homicide by an omission for negligence (Hamilton) but must at least dolus
eventualis
Difficult to prove
Not enough just to breach legal duty, must also prove causation and
negligence in regards to death
Beyond reasonable doubt

25

 Court: take into account pressures + resource limitations of police

weigh up balance costs and difficulties requiring positive action to
prevent death
Also, a person with special knowledge or experience: standard of
reasonableness is elevated shows the need for a more stringent
inquiry into accountability/unlawfulness of an omission by a public
functionary as opposed to a private individual

Why is it relevant?
-

SA: victims of crimes of violence are not yet eligible for compensation in
criminal trials

Problems
-

Criminal prosecution: state would be both prosecutor and accused

Suggestions
-

Legislation created
In line with concept of Ubuntu and contemporary European thinking
Create special offences with appropriate stigma and penalties
Objectives of legislation: encourage persons, where feasible, to help others in
danger
Also, punish public officials who simply fail to fulfil duty with necessarily causing
harm in the process
Courts would require at least negligence

26

Elements of the Crime: CAUSATION

Cases

Sv Danils en n ander 1986 (A)

S v Mokgethi en andere 1990 (A)

S v Tembani 2007 (SCA)

Road Accident Fund v Russell 2001 (SCA)

Minister of Police v Skosana 1977 (A)

Ex Parte die Minister van Justisie: in re S v Grotjohn 1970 (A)

R v Blaue 1975
8.1. Background

NB: distinction between crimes prohibiting a certain consequence and those

prohibiting a certain circumstance (Trick question in test/exam)

1. Consequence crimes
Prohibit certain consequences
Must establish a causal connection between specific act and specific
consequence
Examples
- Murder = causing death
- Culpable homicide
- Robbery (BUT possession of stolen goods = circumstance)
- Arson
2. Circumstance crimes
Prohibits specific conduct/crime
Examples
- Smoking dagga (even if just in possession)
- Rape
- Attempted murder
- Negligent driving (regardless of whether you hurt someone)

Causation is only relevant for consequence crime there must be a causal

link between the conduct and the (unlawful) consequence

8.2. Introduction: Theories of Causation

8.3. Factual Causation

Link/connection between conduct and consequences on the basis of our

scientific knowledge and natural experience (but for)
Use objective or scientific notions of cause and effect
As an exclusive test for liability it is too wide

8.3.1. Conditio Sine Qua Non Test

Condition without which not

27

Q: would this consequence have occurred BUT FOR the accuseds conduct?
Look for the factual link (nexus)
Application: positive act
o Hypothetical elimination of accuseds act/conduct
o But for accuseds conduct, would the consequence in question have
occurred (at all/when it did)?
Application: omission
o Hypothetical addition of act which should have been performed conditio
cum qua non
o Q: would consequence disappear if accuseds omission were replaced by
the positive act legally required from the accused?
o PRESCRIBED: Minister of Police v Skosana 1977
Drunk driver arrested and beaten by police left in police cell
began complaining about stomach pains, but nobody called for
doctor died a few hours later, could have stayed alive if he had
received medical assistance
Legal question: on balance of probabilities, would reasonable
conduct have prevented his death?
Court found it would in principle, but not according to this
particular set of facts
Evaluation of factual test:
o Complete support
De Wet & Swanepoel; Van der Merwe & Olivier
Believe that it should be the exclusive test
o Criticism
Leads to unlimited causation
Problem with alternative/cumulative causation:
Alternative causation cannot be applied
Cumulative causation can be applied
Is an ex post facto (after facts have occurred) way of
checking for causation rather than a test
Therefore qualified support of CSQN, limited by test for legal
causation

8.4. Legal Causation

Limits factual causation

Limitation on policy grounds using legal criteria, e.g. reasonableness, fairness
o I.e. policy limits on the extent of liability
Consider how the community feels about the conduct
Writers differ about which test for limiting liability should be applied

8.4.1. Individualisation Theories

Tries to isolate ONE causa as THE legal cause

o Whats the most important reason this person died?
E.g. proximate cause (closest), substantial cause, substantive cause or causa
causans (most important), direct cause, efficient cause
Single out what is the most important cause look at contributing factors
Criticism
o Arbitrary and coincidental standards
o May be multiple acts which are equally decisive

28

8.4.2. Adequate Causation Test

NB: wording whether (the killing of X) according to human experience, has

the tendency in the normal course of events to bring about that type of
situation (a prohibited consequence)?
Act = legal cause of a situation
Criticism
o Too vague
o May be confused with negligent test intent?
o Degree of probability what factors?

8.4.3. Novus Actus Interveniens Test

New intervening act/event: abnormal intervening act/event which serves to

break chain of causation
Later act/event eliminates original link/nexus
NB later act is not necessarily always a novus actus or novus causa
Snyman: looks at what is abnormal test focuses on something that happens in
between
E.g. X shot Y. Y dies on the way to hospital
- Was there something in between that caused a break in causation? Then
there would not be a logical link between the conduct and the death
- Is it reasonable to hold X liable? Was the wound fatal? Was there
something abnormal that intervened on the way to the hospital?
Relationship between adequate causation test and novus actus interveniens?
o Unsuspected, abnormal unusual event
o Negative expression of adequate cause
o A situation is not regarded as causally connected to a proceeding act if it
arose in an unsuspected/unexpected way
o It is sometimes said that applying adequate causation test will yield very
similar conclusions to those reached when applying the novus actus
interveniens test two sides of the same coin
o BUT not always true: application in S v Daniels 1983 compare
reasoning and conclusions of judges Jansen (& Van Winsen) and Trengove
(& Nicholas) judges come up with different conclusions based on the
same set of facts

8.4.4. Flexible Approach

Single test or combination?

o PRESCRIBED: S v Mokgethi en andere 1990
Bank teller shot during bank robbery became paraplegic, used
wheelchair condition improved, even resumed work at bank
later readmitted to hospital after suffering from septicaemia and
bed sores was advised to but did not sufficiently shift position in
wheelchair died 6 months after initial shot
Wounding of deceased not regarded as a juristic cause of death
o Court reluctant to lay down any single test for determining legal
causation
o Flexible, general test sufficiently close connection
o Emphasis on policy considerations

29

o
o

Result would be reasonable/fair

Various tests are merely factors/aids in determining legal causation

Are victims pre-existing physical susceptibilities a novus actus interveniens? NO

o General Rule: you take your victim as you find him (thin-skull rule)
o BUT: should this rule be extended to emotional/religious characteristics?
YES
English law: R v Blaue 1975
Blaue stabs girl in chest and lungs needs blood transfusion
but she is a Jehovahs Witness (refused to get a blood
transfusion because of religion). She later dies.
Accused still guilty because religion part of who she is
Court: there is a causal connection between Blaues conduct
and her death
Is improper medical intervention a nocus actus interveniens?
o Burchell: if medical treatment was negligent/improper it should be viewed
as a novus actus interveniens
o Snyman: gross negligence on part of doctor/nurse will be novus actus
interveniens
o Negligent medical treatment not necessarily a novus actus interveniens
o PRESCRIBED: S v Tembani 2007
Suicide and causation
o Act of suicide/conduct of victim as novus actus interveniens?
o Ex parte Die Minister van Justisie: in re S v Grotjohn 1970
Husband and wife do not get along
Wife in wheelchair very bitter
Husband has secret affair eventually tells her
Husband gives wife gun and tells her to shoot herself because she
is a burden to him
She shoots herself
Court: husband is innocent
Minister of Justice questions this decision
o Psychological causation
Road Accident Fund v Russell 2001
Russel was in a car accident brain damage, 1 month coma
Woke up with different personality tried to kill himself twice
Wife put him in nursing home he had attempted suicide
Said he should never work again
Jumped off building and killed himself
Russel sue RAF because he was depressed as a result of the
accident - not sound of mind + impaired judgement
Thus, accident was legal and factual causation
Court applied flexible approach would be evidentially
reasonable and just

Difference between general community values for legitimate defences

and for realm of criminality
-

Potential dangers of using concept of community values to expand legal duty to

act fundamental principles of legality
Reasonable certainty

30

 If not clear = vague + potentially retrospective operation

If failing to act under constant expansion due to legal convictions of the
community principle of legality in jeopardy
Pg 89 (ph 116)

31

8.

Elements of the Crime: UNLAWFULNESS

8.5. Introduction

Conduct that complies with the formal definition of the crime usually =
unlawful conduct
BUT under certain circumstances unlawful conduct may be justified is
lawful
Under what circumstances?
o Self-defence, consent, necessity
NB for the interests / legal convictions of the community
Ground of justification = where legal convictions of community require
that a (generally unlawful) act be regarded as lawful
Legal convictions of community: Chapter 2 of Constitution (Bill of Rights)
Burden of proof: State must prove beyond reasonable doubt that you are
not justified
- Accused raises defence
- State must prove requirements not met
I.e. to be unlawful, the conduct must take place under certain
circumstances where no recognised grounds of justification exist
= No criminal liability if a defence excluding unlawfulness exists
Unlawful conduct = no ground of justification = criminal liability
Grounds of justification exist in certain recognised situations (see below)
8.6. Grounds

of Justification:

Not necessarily a closed list

Criteria: the legal convictions of the community

8.6.1.

PRIVATE DEFENCE (PD)

Cases

S v T 1986

Ex Parte die Minister van Justisie: in re S v Van Wyk 1967 (A)

S v Trainor 2003 (SCA)

S v Steyn 2010 (SCA)

S v Mogohlwane 1982

S v Engelbrecht 2005
8.6.1.1. Definition

A person who is the victim of an unlawful attack upon his/her person, property
or other recognised legal interest (also interest of 3 rd party)
Act on behalf of the State where the State cannot help you defend their own
interests privately
May resort to immediate, reasonable and necessary force against the attacker
To repel such attack
Any harm/damage inflicted upon the aggressor in the course of such private
defence is NOT unlawful

32

8.6.1.2. Background

General rule: may not take law into ones own hands / resort to self-help would
condone vengeance, retaliation, other forms of self-help that disturb peace,
good order and rule of law
Why is PD not private vengeance?
Conflicting approaches: relationship between the interests of (harm inflicted by)
the attacker and the defender
o Weighing up / balancing interests against each other choosing lesser of
two evils
o NB for individual autonomy?
Therefore: PD = extraordinary remedy to escape criminal liability the accused
must be able to show that PD was in conformity with the relevant social/legal
norms

8.6.1.3. General Requirements

1. PD must have been necessary in the circumstances
2. If necessary, PD must be carried out by a means appropriate to the
danger/attack

8.6.1.4. Conditions Relating to Attack

1. Attack must be WRONGFUL/UNLAWFUL
Must be human i.e. if a vicious animal is about to attack and you shoot
it cannot use private defence but could use necessity
Must be justified i.e. police are justified to use handcuffs to restrain
people but ordinary people cannot cannot use private defence against
lawful arrest, justifiable punishment or protect ones property from lawful
seizure or search
Must be actual (fear is not sufficient) i.e. a toy gun/joke/staged crime is
not an actual attack cannot rely on private defence. The test is
objective!
Can be a positive act or an omission i.e. failing to free a prisoner after
he has served his sentence
NB: a lack of criminal capacity (i.e. a child or mentally ill person) does not
make the attack lawful
2. Attack must be against a RECOGNISED LEGAL INTEREST
Not all legal interests have always been recognised as the subject of
private defence
Which interest may be protected by means of PD?
Life and limb
Property
Personal freedom
Human dignity
Sexual integrity/Chastity save chastity of wife or sister i.e. female
entitled to kill a man attempting to rape her
Dignity? Does not involve bodily harm, honour alone. Unlikely that
would be extended in RSA law
Attack not necessarily directed against defender; may protect 3 rd partys
interests (an individual)

33

But not as vigilante i.e. society as a whole

3. TIME: attack must have already have COMMENCE or must be IMMINENT

Fear alone is not enough to justify but relevant for putative private
defence *see later
No pre-emptive strike to ward off a future attack
Attack must also not be completed if ceased = retaliation and not
private defence
S v Mogolhwane 1982
A person had all his possession in a paper bag
A person threatened him with an axe and force to give up
his bag: didnt want to hand over but had to
He ran to parents house nobody home fetch kitchen knife
0 run back to scene of crime
Robber still at crime scene: Mogolhwane tried to get bag
back, robber threaten him with axe again
Mogolhwane stabbed the robber: killed him
LQ: Could he use legal force to retrieve the bag?
- Court: yes he was threatened with an axe
LQ: Was his response immediate or an act of revenge: could
he rely on private defence?
- Court: Mogolhwane ran home part of same act
(incidence were viewed as a whole short time
between acts)
Emphasis on value of bag; court stated he met all the
requirements for private defence
EXCEPTIONS to rule that attack should already have begun/be imminent?
Family violence?
Application of PD in context of battered wife syndrome (=
psychological, prolonged abuse; cycle of abuse abuse,
then apology, then better temporarily, then abuse begins
again)
May victims of domestic violence pre-empt an anticipated
and inevitable future attack, and injure or even kill their
abusive partner?
PRESCRIBED: S v Engelbrecht 2005
Protective devices?
PRESCRIBED: Ex parte die Minister van Justisie: in re
S v Van Wyk 1967

8.6.1.5. Conditions Relating to Defence

Defence must be:
1.

NECESSARY to avert attack

Defence must be only way to avert threat to rights/interests
I.e. should not be able to use normal legal procedures
S v Trainor 2003
- Abuse: restrictions against one another
- Wife: tried to remove keys from ignition
- Wife: punched husband he attempted to ward off her attacks
- Killed her

34

S
If
-

2.

PD?
Court: many other options besides hitting and killing her could have
pushed her away, gone into house he did not attempt to make her stop
Harm inflicted was greater than the attack: not necessary
v Engelbrecht 2005
it is possible to avoid the attack: do you have a duty to retreat/run-away?
No absolute duty to flee/retreat from unlawful attack
If fleeing will worsen chance: more justified to stand ground and defended
Not expected to expose oneself to more danger but can stand up for oneself
Burchell: duty to retreat is demeaning and insulting to innocent victim of
unlawful attack. = should stay and fight
Snyman: waarom moet reg voor onreg wyk? Justice bow before the law
Question whether defender could have fled ought to be merely ONE of
issues to be taken into account in assessing whether defensive act was
lawful

REASONABLE response to attack

Must be rough approximation/reasonable balance between attack and defence
It does not need to be proportional
Balance between interests threatened and weapons used
S v Steyn 2010
- [**Test question: compare Steyn to Engelbrecht]
- Woman living in house with ex-husband he was abusive
- She escaped and locked herself in bedroom: he told her to stay inside
and will not eat
- She needed to eat to take her medication
- She left the bedroom to look for food (she was scared so she took a
revolver with her)
- She saw him in kitchen he reacted violently and said he would liked
her picked up knife
- She fired one shot and ran away to room
- Could
she
rely
on
PD?
Court: ATTACK imminent, no other options
- Court: must look at factors of each case merited on own
circumstances (not necessary to have absolute proportionality)
- Not expected to have fired warning shots he was too close
- Decision: all factors into account scared + dominated + urgent need
for food + allowed to leave her own room = not unlawful
- SCA: she was acquitted
Proportionality?
i. Interests
1. Between nature of protected interest and nature of interest
being infringed? NO
a. S v T 1986
- School boy bullies
- Gun of friend: shot and killed bully
- Circumstances into account
- Interests threatened to dont need to be proportional:
bully threaten with hands, but react with gun
- T could rely on private defence
b. Ex parte die Minister van Justisie: in re S v Van
Wyk 1967

35

i. May even take life to protect private property in

certain circumstances
ii. Weapons/means
- Attacker has no right to determine the type of weapon, etc.
Would imply that attacker may determine ability of
defender to defend!
Therefore proportionality not a requirement
Do not need to use same method of attack at attacker
i.e. stone for stone
b. Modern approach
- Rather consider whether defender acted reasonably in the
circumstances than proportionality
- Factors/context
Nature of attack
Interests threatened
Relationship between parties
Age, sex, size and strength of parties
Location of incident
Nature of means used in defence
Result of the defence
NB: Aimed against unlawful attacker - cannot attack i.e.
child of A attacker to stop A from attacking you
Snymans requirement: person defending self must know
they are defending themselves in private defence in bus,
person with bomb, but dont like person and decide to kill
without knowing of bomb save people but cannot rely on
defence because not in self-defence
3. Directed against attacker
- Not against a 3rd party

8.6.1.6. Test for Private Defence: Conclusion

Court must objectively examine the nature of the attack and defence to
determine whether they comply with the requirements set out above
o Objective = ex post facto; after event happened; looking from outside
into the situation
o NB: not subjective (in head of person at time of crime)
Court must not act as armchair critic:
Case must be considered objectively in the particular circumstances of the case:
court must put itself in the position of the accused at the time of the attack
(subjective element) i.e. fact that pitch dark how the accused perceived his
circumstances
Also think about
o What happens if limits of PD are exceeded?
I.e. 1 requirement not met = no PD
Putative private defence really thought acted in private defence
i.e. Oscar Pistorius case (objectively: no danger, but subjectively:
he thought there was danger)
o What about PD by the attacker?
Only succeeds where counter attack exceeds limits of PD

36

8.6.2.

NECESSITY

Cases

S v Goliath 1972 (A)

S v Bradbury 1967 (A)

S v Pretorius 1975

S v Malan 1998

R v Canestra 1951 (A)

R v Dudley & Stephens 1884

Definition

A defence: excludes the ground of unlawfulness makes lawful, not liable

A situation brought about by the force of surrounding circumstances or by
human agency (i.e. compulsion, duress or coercion)
Situation: person has choice of evils what is legally prohibited
Must be confined in strict and narrow limits
Putative necessity: accused mistakenly believed to have acted reasonably as
well as bona fide and genuine (no distinction between mistake of fact and
mistake of law)
Necessity may succeed as a defence excluding unlawfulness if:
1. A legal interest of the accused has been endangered
2. By a threat which has commenced or is imminent
3. But which was not cause by the accused fault
4. It must have been necessary for the accused to avert the danger
5. And the means used for this purpose must have been reasonable in the
circumstances

8.6.2.1. Distinguish: Private Defence & Necessity

Private Defence

Necessity

General defence against criminal liability; both also have putative

element
Protection of interest of value
Unlawful human attack
Defence aimed at attacker
Ethical justification easier:
Defence against unlawful attack reasonableness

Unlawful human
conduct/compulsion/chance
circumstances (act of nature)
Defence aimed at interests of
innocent
3rd
party
or
legal
prohibition
Ethical justification harder:
Choice between two evils
proportionality required

8.6.2.2. Requirements for a Successful Reliance on Necessity

1. Legal interest endangered

37

Endangered by inevitable evil e.g. source:

E.g. life, bodily integrity, property
Nature of legal interest protected is not important other requirements for
necessity must merely be satisfied
Open list of legally protected interests e.g. danger of death, serous bodily
harm, health, family life, privacy, personal freedom etc.
NOT pecuniary losses i.e. fear of losing ones livelihood
- R v Canestra 1951
Harm avoided must be weighed up against the harm done by the accused
Also interests of innocent 3rd party

2. Threat commenced/imminent
Not already ceased / only to be implemented in future (NB: no pre-emptive
strike)
Accused must desist immediately when the danger has passed
Already finished or expect in future: not rely
Courts STRICT: no extension for this defence as extended in PD (domestic
violence, defensive weapons etc.)
Why strict? Whose interests are you infringing? = An innocent person or
laws of the land
This requirements is almost an exact overlap to PD
3. Threat not caused by accuseds fault
- Created dangerous situation himself?
E.g. teasing baboon, baboon attacked: rely on necessity?
Controversial
S v Bradbury 1967
S v Pretorius 1975
a. Distinguish different situations
i. Where one should keep the creation of danger and rescue from it
apart
S v Pretorius 1975
ii. Where accused invited the trouble on himself
S v Bradbury 1967
4. Necessary for the accused to avert the danger
Must be absolute last resort
Stricter than PD: why? Whose interests infringed? Innocent
Court must be satisfied that harm must most probably have resulted had
accused not acted as he did
PRIVATE DEFENCE: Duty to flee? NO: Why must justice bow before
injustice Snyman
NECESSITY: Must flee/seek police protection if possible must avoid the
danger
Do no more harm than is necessary to avoid the danger
5. Use reasonable means to avert anger
Reasonable to avert threat AND reasonable means used
circumstances
Accused must do no more harm have necessary to avoid danger
Court: balances interests

38

in

Conduct must be reasonable and proportional in the circumstances

(balancing of interests protected and interests infringed)
S v Malan 1998
Proportionality between interest infringed and protected interest
(absolute requirement)
NB: interest protected must be of more value than the interest infringed
(DIFFERENT to PD)
Why so strict? Conduct is violating 3rd party
S v Pretorius: childs health > speed rules
S v Malan 1998: value of vineyard > monetary value of goats
What happens if of same value?
R v Dudley & Stephens 1884
- More necessary to kill him?

6. Legal

obligation to suffer harm

Sometimes cannot avoid danger must confront this danger
E.g. policemen, soldiers, firemen etc.
Example: Knock somebody over to escape fire?
- Ordinary person: could rely on necessity
- Legal duty to suffer hard: cannot rely on necessity
- Off-duty? Criteria: legal convictions of community expect him to
act decide
Discussion: is one entitled to kill another person in necessity? I.e. LIFE v
LIFE
R v Dudley & Stephens 1884
S v Goliath 1972
Acquitted

Minority judgement: J Wessels whether possible to exclude fault as a

requirement
-

Excludes unlawfulness or fault? Fault

Objectively speaking: cannot say his life is more valuable
than other person
- If apply requirement of proportionality then requirement is
NOT met because interests/values are same
- BUT Wessels willing to give defence: willing to exclude
requirement of fault
- He did not act with fault can be acquitted on this basis
Interesting article (web studies): conjoined twins and necessity
case
- Medical evidence: will die if not separated
- Mary was weaker than other (medical evidence) and once
they were separated then she would die
- But if separated then good chance that Jody would survive
- Stay together: will both die
- Parents: religious belief (Roman Catholics) leave joined
- Doctors: want to separate
- Case to court
- Appeal: whether doctors allowed to separate or not?
- Only way to stop inevitable evil: kill Mary justified.

Objectively: necessity requirements

39

Inevitable evil: two lives v one life

Absolutely necessary? Court yes
Fact that minor: State acts as overall guardian

o
o
o

Other medical examples of necessity

Doctor performs operation without consent to save life (infringe right to freedom
of choice)

8.6.3.

IMPOSSIBILITY

Impossible for accused to comply with a positive legal obligation/duty

(imperative norm)
o Objectively physically impossible
o Strict test
R v Canestra
- Impossible to avoid catching smaller fish
- Court: could not rely on it no legal duty for him to catch the fish
Over speed limit case
- No obligation/duty to be a driver
Person has court date on same day: legal obligation to appear in both courts
otherwise contempt of court
- Possible to rely on impossibility
Question: does impossibility exclude voluntary conduct or unlawfulness?
o Depends on circumstances

Requirements
1. Positive legal obligation
Where there is liability for an omission (see conduct element)
Only applicable to imperative legal obligation, not prohibition
2. Physically impossible to comply with law
Absolute, objective impossibility
3. Not due to accuseds fault: created impossible situation
Depends on circumstances
Intentionally sure cannot carry out legal duty court will convict you
Examples:
i. Not being able to pay tax = accuseds fault = no impossibility
ii. Lock self out and throw key away to not appear in court = not
impossibility

Counter defence to necessity

8.6.4

SUPERIOR ORDERS

Case

S v Mostert 2006

= Ground for justification only will succeed where a subordinate obeys an

UNLAWFUL order given by a superior lawfully placed in authority over the
subordinate

40

Does the subordinate have the duty to perform an unlawful order?

Context
o Military, police
o Strict discipline
o Absolute obedience to orders
o Defence only works if there are superiors and subordinates
o NB: only relevant where a subordinate obeys an unlawful order
2 approaches
o 1. Blind obedience obedience to superior orders is always justified
defence excluding unlawfulness
o 2. Never excused to carry out extreme orders i.e. should always
question the lawfulness of an order
Above approaches problematic
RSA LAW = Compromise: a subordinate is only obliged to obey an order that has
not manifested unlawfully reasonable person?

Requirements
1. Superior must be lawfully placed in authority over subordinate to give
order
2. Subordinate must be under duty to obey order i.e. not manifestly
unlawful
- Unlawful v lawful order?
- Manifestly unlawful order (objective test) no duty to obey
- E.g. ordered to rape somebody = manifested unlawfully
- E.g. a cop who was ordered to search a house but didnt have a
warrant = not manifest unlawfully
3. May not cause more harm than is necessary for execution of order
- PRESCRIBED: S v Mostert 2006

8.6.4.

DISCIPLINARY CHASTISEMENT

Cases

S v Williams 1995 (CC)

Christian Education South Africa v Minister of Education 2000

(CC)
Legislation

Section 10 of the South African Schools Act 84 of 1996

Ground of justification for corporal punishment

Who?
o Parents/guardian of that particular child i.e. in loco parentis (not
teachers or punishment for crime = unconstitutional)
o Administered on a CHILD
Can the parent/guardian be charged with assault?
Constitution rights at stake?
o S v Williams 1995
Right to respect for and protection of human dignity; bodily
integrity; no person shall be subject to torture of any kind/cruel
and unusual punishment; right to equality
Juvenile whipping declared unconstitutional, removed from
Criminal Procedure Act

41

Teachers: SA Schools Act 84 of 1996: no person may administer corporal

punishment at a school to a learner.
o Christian Education SA v Minister of Education 2000
Appellant claimed unconstitutional rights of parents (of children
at private schools) to consent to its use in line with their religious
convictions infringed on rights to privacy, freedom of religion, etc.
Respondent claimed infliction rather than prohibition of corporal
punishment = unconstitutional inconsistent with right to equality,
dignity, children, etc. and provisions in Bill of Rights
CC: if we weigh up rights of children (children right specifically
protected in S 28 of Constitution and Acts) vs. religious rights of
parents
Constitutional court ruled in favour of respondent: corporal
punishment in schools unconstitutional (even in private schools)

How is corporal punishment parent/guardian-child relationship still allowed?

SA Common Law
o NB: for parents right and duties in connection with education and
upbringing

Requirements
Reasonable
Punishment must be deserved
Parents motive: education/correction/admonition for an actual
offence (cant be frustration)
o Moderate
Factors including childs age, sex, build, health, character of
offence and degree of force applied
Different to child abuse
Burchell: how to gauge where is discipline and abuse? Difficult to
distinguish
o Necessary
Must be deserved
Two schools of thought:
- Snyman: retain corporal punishment, provided it is reasonable,
moderate and necessary i.e. child attacked parent right of
parents to fight back
- POD: no hitting children in the house (Burchell agrees)
restorative justice measure used instead
Possible abolition of defence?
o See proposals in s 139 of Childrens Amendment Bill B 19B-2006
o READ: Burchell 189- critically weigh the various options up against each
other: parent use force to help child i.e. from running into road
o International trends moving away
o Childrens Amendment Bill
Different approaches to disciplinary chastisement as a ground of justification
(NB: give opinion in a test)
1. Approach emphasizing childrens rights, especially human dignity no
ground of justification
All forms of corporal punishment / chastisement to be prohibited as
a crime (usually as assault)
o

42

2. Pragmatic approach reasonable/moderate corporal punishment by

parents/guardian permitted
Criminal liability only where child is abused cruel, inhuman,
degrading treatment or punishment
3. Extension of (2) reasonable chastisement as defence to assault is
permitted
Will succeed (make unlawful conduct lawful) unless corporal
punishment in incompatible with human rights norms

8.6.5.

PUBLIC AUTHORITY / OFFICIAL CAPACITY

Cases:

Ex Parte Minister of Safety and Security: in re S v Walters 2002 (CC)

Govender v Minister of Safety and Security 2001 (SCA)

Legislation:

Section 49 (1) of the Criminal Procedure Act 51 of 1977 as amended by

section 7 of the Judicial Matters Second Amendment Act 122 of 1998 [308]

Accused performs an unlawful act by virtue of his office authorized by State

e.g. public servant
Act performed in execution of his duties
Characteristics
o What conduct?
Violence against life, body or property
E.g. aggression upon life, person and property
o Who?
By virtue of his office as a public servant (exercising his duties as
employee of the state)
E.g. officers of courts, the law or state
o Example
Execution of court judgments
Diplomats
Lawful arrest
Use of deadly force?
S 49 of Criminal Procedure Act amended by Judicial Matters
Second Amendment Act 122/1998
Govender v Minister of Safety and Security 2001
Ex parte Minister of Safety and Security: in re S v Walters
2002
S 49 of Criminal Procedure Act: use of deadly force
o Resisting arrest
o S 49(1) reasonably necessary (force)
Requirements
1. Authority
2. Attempted arrest
3. Suspect attempted to flee/resist
4. No other option
5. Force was reasonably necessary
o S 49(2) killing if no other means
Requirements

43

1.
2.
3.
4.
5.
6.
7.

Schedule 1 crime (i.e. serious)

Reasonable suspicion
Authority to arrest
Attempted to arrest suspect
Intent to arrest
Suspect must offer resistance
Suspect must be aware of intention to arrest
a. S v Barnard
8. No other method available
9. Force aimed at suspect
Ex parte Minister of Safety and Security: in re S v Walters 2002

8.6.6 CONSENT
Cases

S v Hartmann 1975 (C)

S v Nkwanyana 2003

Esterhuizen v Administrator, Transvaal 1957

S v W en n ander 2004
Legislation

South African Law Reform Commission report: Euthanasia and the

Artificial Preservation of Life Project 86 (November 1998) available at:
http://www.doj.gov.za/salrc/reports/r_prj86_euthen_1998nov.pdf. Read
especially the proposed End of Life Decisions [Bill]
General

Principle of volenti non fit iniuria = he who consents, is not harmed

Person may consent to crime against her/himself under certain circumstances
Public policy when state willing to prevent to harm or where allow to do what
want [dynamic question]
o NB: distinguish between delicts and crimes: NB for protection of public
interest with crimes
o Legal convictions of the community
Consent (where accepted as a defence) excludes unlawfulness
DOES not always apply in RSA law
Examples: euthanasia

Three requirements
1. Consent must be recognized by law as a possible defence

General limits [based on current policy considerations]

Distinguish between crimes where:
o Crimes against community/State
Consent doesnt play a role
Interests/values of community + State infringed
E.g. person speeding traffic cop cannot waiver
o Crimes against specific individual
Able to consent (in some instances) as victim of
the crime himself
Distinguish between crimes where:
o Consent forms part of definition of crime

44

Can never be a ground of justification, but is a

defence (i.e. like conduct, causation, etc.)
E.g. rape = unlawful, intention sexual
intercourse without other persons consent so
if there is consent, it is a complete defence

a. Consent is never defence/grounds for justifications (g.f.j.)

S v Hartmann 1975
1995, Law Commission try to turn over this
judgement but never been implemented [219226]
S v Nkwanyana 2003
English
cases:
Jehovahs
witness:
blood
transfusions: doctors to get court order if minor;
anorexia
With no consent, always a crime e.g. sexual crimes
prove lack of consent
U12 no consent can be given for any sexual crime

b. Consent is always a ground for justification

Property crimes
E.g. theft
c. Consent is sometimes a ground for justification

Consent to bodily injury

POD: Depends on degree of injury less serious then less likely to recognise
consent
- E.g. a light slap, did with your permission then its fine
Purpose of injury
- E.g. operation to remove heart or amputation
- E.g. injuries sustained during sexual activities consent given
- A good and worthy aim/purpose then more readily recognised i.e.
entertainment (boxing, rugby vs. illegal sports drag racing)
Convictions of the community

Medical operations/treatment
POD: doctor must obtain voluntary, informed consent by patient usually =
ground for justification
Patient must be informed of material risks that could happen + their
consequences
- Likelihood of material risk occurring
- Severity of potential results
- I.e. 80% of people get headaches or could die high chance + severe,
must inform
Esterhuizen v Administrator, Transvaal 1957
Non-therapeutic treatment / research procedure
- Must give information about all possible risks (not just material
risks)
If not possible to obtain consent

45

Infringement of interests by operation may be justified on the

ground of necessity / negotorium gestio / unauthorized
administration
Purpose of operation

Sport
Distinguish between lawful and unlawful sport
- Unlawful: e.g. dueling, Russian roulette; consent not valid
- Lawful: must be formal set of rules
Participation = consent to risk of bodily injuries
- Mere participation in itself = consent
Distinguish between play according to / contrary to rules
- Did not consent to illegal conduct i.e. against rules of rugby?
- Snyman: if expected then covered by consent but if clearly
outside rules then consent is not valid
2. Real, informed and voluntary consent

Real consent = informed consent

Certain of nature and consequences of consent
(= By a person capable in law of consenting)
Unilateral manifestation of the will
Abandonment of interest
One person decides whether to give consent or not
E.g. leave textbook and another person picks it up not stealing,
unilaterally decided to give up consent
Submission is not consent e.g. especially in rape cases
Burchell: sexual crimes must be a meeting of the minds not
unilateral consent. Both parties know consent given.
May be implied or express
But active more than mere submission
Threat/force (NOT real consent) could be against property, self, 3 rd party
Fraud = no valid consent
Somebody is lied to misrepresentation with regards to nature or
consequence of act
Must know what consenting to and have all the knowledge: Burchell
pillow fight
Example: Rape very particular crime (stricter requirements for sexual
crimes) fraud doesnt always exclude consent in sexual crimes
Example of exclusion of consent
o Error in negotio: mistaken belief regarding nature (what you are
doing)
A doctor says if you have sex with me then it will improve
chances of having children = NOT error in negotio, error in
consequence
R v Williams 1923
S v W 2004
o Error in persona: mistake regarding person
Mistake regarding who the person is e.g. a twin but not ito
money, nationality etc.
o Consent to unprotected sex not knowing partner has AIDS? Should
you disclose your status before having sex?
Valid consent?

46

State of mind of person transmitting: malicious/mala fide

possible to convict
Open question as to whether this will be rape
Free and informed consent are certain factors listed but
not a closed list

3. Person capable in law of consenting

Capable of understanding nature of act to which he/she has consented
Capable of forming a will
Youth
1. General
Children under 7 cannot give consent do not
understand nature and consequences of act
2. Sexual offences
Children under 12/16 (if between 12-16, = statutory
rape)
3. Medical treatment
Childrens Act 38 of 2005
Children
>
12
can
consent
to
medical
operation/treatment
Provided that the child is of sufficient maturity and
has the mental capacity to understand the benefits,
risks and social implications
Mental illness and intoxication
Discussed later under element of criminal capacity
Date rape drug: not capable of giving consent
Unconsciousness or asleep
No valid consent
Substituted or proxy consent
Parents or guardians, Minister or court could on behalf of
children consent
Must be to their benefit and not to the detriment
Example: withhold medical treatment due to religious
reasons hospital; can override and get consent if it is to the
childs benefit
See also s 129(6)-(10) of Childrens Act: consent for medical
operations
Mistake?
Bona fide mistake as to existence/validity of consent = no
consent = unlawful conduct
But fault may be absent (see later)

8.6.6.

NEGOTIORUM GESTIO

= Unauthorized administration presumed consent

Ground for justification:
- Applicable where an accused protects/furthers the interests of another,
with the aim of benefitting them, without his/her knowledge or consent to
help them
Examples:

47

a. Doctors operating on patient without consent because they are

unconscious
- Justification 1: necessity infringe on bodily integrity to save their life
- Justification 2: negotiorum gestio
b. Neighbours house is under threat of being broken into, you go and take
all his property to prevent people form stealing motive is to look after
things

NB for motive of one who intervenes must be to the benefit of other person
8.6.7.

NOT specifically a ground for justification

Crime that person committed is so trivial or minor that law does not pay
attention to it
Still UNLAWFUL CONDUCT but law does not punish their conduct due to triviality
Why? Burden on criminal justice system
Example: neighbour stole leaves off your hedge, steal a piece of paper, parent
giving their child a tap as punishment
Statutory rule: drunk while driving not trivial if just over the limit
How to test if insignificant? Must be ACTUALLY insignificant must be an
objective test (not proportional to a persons wealth)

8.6.8.

DE MINIMIS NON CURAT LEX

ENTRAPMENT

Defence applies where accused was induced to act unlawfully by a lawenforcement officer
NOT a general ground for justification now
Example: policeman pretends to buy drugs from a drug dealer to arrest him,
undercover officer
To which crimes is it generally applicable?
o Drugs; stolen goods; prostitution; dealing in illicit goods
What is the link between all the crimes? Why catch the criminals in normal way
o Consented crimes there is no victim
o Crimes against wider society
o Only way to catch it to induce a crime
Justification/defence - extends beyond merely affording the accused the
opportunity to commit a crime that he/she would in any event had committed
(he does not have to induce the person not against their own will)
NO defence
o Person persuaded beyond normal
o Would not have consented to otherwise

How to determine if defence or not:

o

Protection of individual autonomy

Accuseds conduct is excusable where government agent induced
him/her to commit the offence (and accused is unwilling / had no
predisposition to commit offence) conduct is not entirely
voluntary
Administrators of justice should not use entrapment at all

48

Entire a.o.j in disrepute if use: should not be a defence (are

abusing their power to induce innocent people to commit crimes)
Public policy considerations
Protection of administration of justice and accuseds due process
rights against abuse of power
If entrapment is a defence, state officials will be deterred from
using inappropriate means to obtain convictions
Possible legal consequences options?
Entrapment as a general g.o.j. (like in USA): a persons individual
autonomy infringed upon conduct is lawful and not unlawful

RSA

Do not recognise entrapment as ground of justification

But recognise in another ways 1) use as basis for exclusion of evidence was
not obtained in according in due process of individual
Evidence is regarded as inadmissible in SERIOUS cases of entrapment =
unconstitutional
Way to ensure police do not use these tactics
Can only use against people with pre-existing precondition
2) Entrapment as factor in mitigation of sentence lesser sentence as he was
induced to commit crime

Practical problem
Z steals a big package of nappies from shopkeeper Y. Policeman X sees Z
running away and shoots at her. Bullet hits the nappies and charged with
malicious damage to property.
a. X cannot reply on necessity because protecting Ys interests not his own (allowed
to protect another persons interest in necessity)
b. X is not guilty because he acted in private defence (not a reasonable response &
attack is not imminent she is running away)
c. X is not guilty due to de minimis not curat lex (not insignificant or trivial)
d. X is not guilty due to necessity (weighing up interests)
e. X is not guilty because his aim was to arrest Z public office (unless it
was a last resort then cannot not a crime involving violence)

49

9.

Elements of the crime: CRIMINAL CAPACITY

9.1. Introduction

Question: can accused be held responsible for his unlawful conduct?

o I.e. could the accused be expected to act differently in the
circumstances?
o NB: subjective inquiry
Background
o Rumpff Commission of Inquiry (into the responsibility of mentally
deranged persons) 1967
o Psychology: human personality made up of 3 categories of mental
function
1. Cognitive function
Think, perceive and reason
2. Conative function
Capacity for self-control and ability to exercise free will
3. Affective function
Capacity for emotional feelings
o Ought only to be held criminally liable if 1 and 2 are present

9.1.1. Cognitive Capacity

-

Reason, ability to understand wrongfulness, insight, ability to differentiate can

they plan
Test: determines whether the accused is capable of appreciating the distinction
between right and wrong & the wrongfulness of the conduct (state must prove,
beyond reasonable doubt, that accused is capable of distinguishing between
right and wrong)
Could they have made another decision? Possible to think in another way

9.1.2. Conative Capacity

-

Able to stop themselves - have control

Able to exercise free will, act voluntarily
Burchell: believes this is a precondition
Self control + power to resist

Thus,

2 questions for criminal law: does accused have psychological/mental capacity

to:
1. Appreciate the wrongfulness of his/her conduct?
Can they differentiate between right and wrong?
I.e. the capacity for insight; understanding
= Cognitive capacity
2. Act in accordance with appreciation/insight of wrongfulness?
Self-control; capacity to resist?
I.e. psychological capacity for self-control
= Conative capacity
BOTH must be present to = criminal capacity
3. Affective capacity

50

Experiencing emotions such as anger (severe provocation)

Where can CC be excluded? I.e. conative or cognitive capacities to be impaired

Two categories are recognised as defences:

Pathological causes (insanity) mental illness

Non-pathological causes (no closed list) youth, intoxication, emotional stress

Why distinction between the two categories?

o

Onus of proof
Insanity/mental illness
Accused
must
prove
criminal
incapacity
on
a
preponderance / balance of probabilities
Any other factor influencing criminal capacity
State must prove criminal capacity beyond reasonable doubt

9.2. Lack of Criminal Capacity due to

9.2.1.

MENTAL ILLNESS [podcast]

Cases:

Hadfields case (1800)

R v Chaulk (1991) 1 CRR 1 (SCC)

Legislation:

Section 78 of Criminal Procedure Act 51 of 1977 [312]

9.2.1.1. Introduction

Approach originally based on English law MNaghten rules (1843) mainly focus
on MI that affect the cognitive capacity
Rumpff Commissions recommendations contained in legislation
o S 78(1) Criminal Procedure Act
A person who commits an act ... or mental defect which makes
him incapable
a) of appreciating wrongfulness of his/her act/omission; or
b) of acting in accordance with appreciation of wrongfulness
shall not be criminally responsible for such an act/omission
o Only applies to mental illness
o Recognised illness: delirium tremens (abuse alcohol over long period of
time)
I.e. A person lacks criminal capacity if:
o He suffers from mental illness/defect
Pathological/biological leg of test (scientific, expert evidence)
o He is incapable of:
Appreciating wrongfulness of act (cognitive)
Acting in accordance with appreciation of wrongfulness (conative)
Psychological leg of test
Question: Could they distinguish right/wrong?, not Did they ...?

51

9.2.1.2. Test used: Application

Test for insanity/mental illness (which excludes criminal capacity) include a

pathological/biological test [1] + [2] and psychological test [3]
Question whether the accused:
1. At time of the offence (Relevant Time)
Consider the mental state of accused at time of offence is only
relevant consideration - NOT prior or subsequent to
Trialability: mental state at time of standing trial
2. Suffered from Mental Illness/Defect
Insanity has a legal, not medical/scientific meaning must affect
cognitive/conative capacities
Not all mental disorders excuse a person ONLY mental illness
which affects the cognative or conative capacities i.e. does the
mental illness affect the accuseds insight (of wrongfulness) or
capacity to control actions?
Mental illnesses which affect the affective capacity do NOT excuse
an accused
No formal definition of mental illness
Criterion for mental illness is that it must be
Pathological
- Product of disease
- Some known or identifiable disease
- Analogue of physical disease: happens to organ of
body and occurs involuntarily = person cannot help or
be blamed for actions under influence of mental
illness
- Not important to note if disease is temporary, organic,
curable or not but conditions may be relevant when
determining whether illness or disease.
Endogenous
- Of internal origin (not external)
- Examples of external: blow to head concussion;
alcohol or drug; administration of anaesthetic
Mental illness vs. defect?
Mental illness = disease of the mind. Usually episodic or
intermittent.
Mental defect = intellect so abnormally low that deprives an
individual of normal cognitive or conative functions. Usually
evident in early age and usually permanent.
3. That deprived him/her of Insight or (Lack of Insight)

S 78(1) of Criminal Procedure Act: 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 mental illness or mental defect which makes him incapable
a) of appreciating the wrongfulness of his or her act or omission; or (cognitive)
b) of acting in accordance with an appreciation of the wrongfulness of his or her
act or omission (conative)
Shall be criminally responsible for such an act or omission

52

9.2.2.

Meaning of wrongfulness
Should accused lack insight into criminality of actions
(narrow test) or moral quality of actions (wide test)?
- Hadfield case (solider suffer head wounds, must die at
martyr & attempted assassination of George III)
- If narrow test: he was not insane knew killing king
was crime
- If wide test: he was insane thought he was doing
good by killing i.e. he was not doing wrong
S78 (1) of Crim Proc Act: wrongfulness refers to ?
- Most authorities prefer narrow test = more concrete,
specific and objective
- To test on morality would be vague, dependent on
different views and subjective
- Best test: whether he knew that his act was wrong
according to the ordinary standard adopted by
reasonable men
Does accused appreciate that conduct is wrong measured
against ordinary standard adopted by reasonable men?
(objective test)
Conclusion: wrongfulness means either unlawful or morally
wrong but both are OBJECTIVE tests

Meaning of appreciation
More than know value judgement
Knowledge of nature of act as well as its implications:
evaluate its effects/consequences for accused himself or
others

To act in accordance with this appreciation (self-control)

Deprive a person of the ability to control conduct according
to this appreciation
Originally called irresistible impulse test
Distinguish from involuntary conduct: not necessary to show
it was automatic or purely reflexive
Question: was the accused not able to resist or refrain from
committing the act

YOUTH

Cases

Weber v Santam Versekeringsmaatskappy Bpk 1983 (A)

S v T 1986
Legislation

S 7-11 of the Child Justice Act 75 of 2008

Children under 10 = complete defence (excludes criminal capacity)

o NB: Child Justice Act commenced operation 1 April 2010 see s 7(1)
and 9

53

o
o
o
o

Previously: children under 7 years old

Irrebuttable presumption (i.e. rule) of criminal incapacity
Why? For policy reasonable cannot be held criminally accountable
Cant be found guilty of crimes
= Unaccountable

Children between 10-14

o Presumption: cannot distinguish between right and wrong (lack of
criminal capacity)
o Rebuttable presumption of criminal incapacity, unless state can prove
otherwise see s 7(2): and 10-11 of Child Justice Act
o NB for diversion: trying to keep children out of the criminal justice system
o Presumption of criminal incapacity may be rebutted if State can prove
that child possessed insight and self-control s 11(1) of Act
o Must have both cognitive or conative capacity:
o

Cognitive capacity
Test including appreciation of wrongfulness what is meant?
Moral test
Can child appreciate that his act is morally wrong?
OR Legal standard
Can child realize that conduct is legally wrong/unlawful?
Courts prefer legal test
Conative capacity
NB: determining childs judgement
Can child control irrational/impulsive behavior?
Weber v Santam Versekering 1983

General
Prosecutor has a discretion to prosecute: section 10(1) of Child
Justice Act for factors to be taken into account
According to s 11(3), court can evaluate childs criminal capacity
through an assessment of cognitive, moral, emotional,
psychological and social development of the child
S 7 (1) & (9):
Assessment = subjective (is this particular child able to...?)
Factors
Age & maturity
Experience
Knowledge
Specific circumstances, etc.
Impact of offence on any victim
Closer to age of 14 years or very serious crime: not necessary
convicted same as adult specific process for children
Preferable option: divert the matter (keep out of criminal
justice system) [page 268-277]
Prefer to use restorative justice: rehabilitation
Children above 14: never a complete defence
o No presumptions regarded as adult
o Evidence can still be brought that he lacks criminal capacity
o Evidence must be brought cannot rely on youth alone
o

54

9.2.3.

INTOXICATION

Cases

S v Johnson 1969 (A)

S v Chretien 1981 (A)

Legislation

Criminal Law Amendment Act 1 of 1988 [316]

INTOXICATION AND PROVOCATION

NB: both can exclude/influence various elements of crime, depending on the

degree of intoxication/emotional stress
Scale
o Dead drunk / Extreme emotional stress
Involuntary conduct (no criminal liability)
Criminal incapacity (slightly less extreme; cant distinguish
right/wrong)
No intent (fault) (ability to form intent taken away by intoxication)
Punishment (person sentenced more/less mitigate/aggravate)
o Somewhat under the influence / Slight provocation

9.2.3.1. Introduction & History

Can be:
o Involuntary
E.g. spiked
o Voluntary
Actio libera in causa
Intoxication leading to mental illness (e.g. delirium tremens)
Remaining instances of voluntary intoxication
Involuntary conduct
No criminal capacity
No intent
Guilty of less serious crime that requires negligence
Ground for mitigating/aggravating punishment
Degrees of Voluntary Intoxication
o Sane automatism / Involuntary conduct
o No criminal capacity
Consumption of alcohol/drugs may deprive accused of capacity to
appreciate wrongfulness of conduct/act in accordance with such
appreciation
o No intention
See later discussion of S v Chretien
o Punishment
Mitigating/aggravating

55

 History
o Intoxication initially not recognised as a complete defence in RDL and in
RSA only a mitigating factor at sentencing or accused found guilty of a
lesser crime
Why? Policy Considerations

Voluntary intoxication is reprehensible accused voluntarily drunk; how can he

then rely on a condition for which he was himself responsible?
Sober offender would be punished, but drunk one excused!
Community must be adequately protected
S v Johnson 1969
o 18 year old and his friends got very drunk
o Johnson wanted to go to town and arrested for being drunk on street
o He was thrown into police cell on his own with another drunk - 68 year old
o Johnson took bucket and hit him on the head & killed him with it
o Court concluded that he acted involuntarily
o He was still given a sentence however, albeit a lighter one
o Appealed: appeal court reached same conclusion as court a quo

2.3.1.1. Other Point of View: Logic & Legal Principle

Only recognised intoxication as a defence in S v Chretien in 1981

General vs specific intent
Should apply usual principles of liability to drunkard
If one element of crime (e.g. criminal capacity) is absent, an accused should be
acquitted

9.2.3.2. Discussion & Criticism of S v Chretien 1981

Case eradicated traditional, policy-based approach of courts to voluntary

intoxication
Adopted a course based on legal principles
Criticism of decision:
o Logically correct and based on pure legal principles (characteristic of
Rumpff)
o BUT what about public policy considerations?
o Public policy / communitys attitude to intoxication miscalculated can a
person who commits a prohibited act while extremely intoxicated escape
all criminal liability?
o

After the Rumpff decision on Chretien parliament passed the Criminal Law
Amendment Act.

9.2.3.3. Legislative Intervention; Discussion & Criticism

of Criminal Law Amendment Act 1 of 1988
Criminal Law Amendment Act 1988
This act criminalizes positive conduct committed in a state of voluntary intoxication
that impairs your mental faculties (cognitive and conative capacity). You wont be held

56

libale for the original crime (due to lack of intention) but of contravention of this
particular piece of legislation (Act 1 of 1988).

This Act makes no provision for lack of action.

The Act does not specifically refer to 'voluntary' intoxication.

You must be aware that the substance you consume will impair your faculties.

Critiism of act

The irony is that the Act applies to sane automatism, or people who are so
drunk they cant control their bodily movements. These people obviously lack
intention. The Act then does not actually apply to people who are only slightly
drunk and who lack intention, like for example in the Chretien case. This is a
major flaw in the Act.
A second major flaw that is that it is difficult for the State to prove beyond
reasonable doubt that the person lacked criminal capacity (it is difficult to
gauge exactly how drunk a person was). The Act specifically says that the crime
must have been committed due to intoxicationn that impaired the person
mental faculties. The State therefore has to prove the person lacked criminal
capacity. Furthermore, mere doubt in for example an assault case that the
person lacked criminal capacity (which leads to their acquittal) is not sufficient
to prove the person lacked criminal capacity in terms of the Act.
The grey area is someone who is not so drunk that it is easy to prove he lacked
criminal capacity in terms of the Act but drunk enough to claim he lacked
intention (meaning he cant be convicted of the original charge because he
lacked criminal capacity). This person will in all likelihood be acquitted of his
crime.
Statutory (definition of) crime created committing on unlawful act while in state
(...)
Elements of new offence:
1. Consumption/use of any intoxicating substance by the accused
Is involuntary intoxication included?
NB for interpretation
2. Impairment of faculties (lack of criminal capacity as a result of
alcohol/drugs)
Does it cover cases where accused acts involuntarily due to
intoxication (sane automatism)?
Yes
Does it cover situations where person has criminal capacity but
lacks intent due to drink e.g. Chretien?
No
3. Knowledge that consumption of the substance has the effect of impairing
faculties
Fault = mens rea
Foresight rather than actual knowledge of the effect of consuming
the substance would be sufficient for liability
Should accused know or merely foresee that he would commit a
crime as well as that drink/drugs would impair criminal liability?

57

 Negligence?
Must extent to include fault in element of offence?
If drink is spiked = not liable. Do not know substance.
4. Commission of act prohibited by law whilst faculties impaired
Covers only positive acts
Dangerous/violent?
5. Accused not criminally liable because of impairment of faculties (i.e.
enough reasonable doubt) NB!
Onus on State to prove lack of criminal capacity / no criminal
liability (is an element of the new and distinct offence)

S 1 offence will often be utilized as an alternative crime

If accused charged with S 1 offence in the alternative
o Original charge (e.g. murder, assault) = State must prove criminal
capacity beyond reasonable doubt
o If State fails = alternative charge of S 1 offence and State must prove
LACK OF criminal capacity!
Must prove lack of criminal capacity beyond reasonable doubt
mere possibility that person lacked is insufficient
o Legislature should rather have used the words not convicted than not
liable
Aggravating factor in sentencing
o Act provides for it (sec 2) permitted at courts discretion is this
necessary?
Conclusion
o Major problems with new Act: tried to fill the gap left by Chretien but was
unsuccessful
o Current legislation does not reflect present need of society

EMOTIONAL STRESS & PROVOCATION

Cases

S v Eadie 2002 (SCA)

S v Arnold 1985 (3) SA 256 (C) obiter

[Conduct]

S v Henry 1999 (1) SACR 13 (SCA)

[Conduct]

S v Potgieter 1994 (1) SACR 61 (A)

[Conduct]

S v Campher 1987 (1) SA 940 (A)

[Criminal Capacity]

S v Moses 1996 (1) SACR 701 (C)

[Criminal Capacity]

S v Wiid 1990 (1) SACR 561 (A)

[Criminal Capacity]

S v Nursingh 1995 (2) SACR 331 (D)

[Criminal Capacity]

S v Gesualdo 1997 (2) SACR 68 (W)

[Criminal Capacity]

S v Eadie (1) & (2) 2001 (1) SACR 172 (C)

[Criminal Capacity]

S v Mokonto 1971 (2) SA 319 (A)

[Intent]

S v Di Blasi 1996 (1) SACR (A)

[Punishment]
9.2.3.4. Introduction

Question: can accused rely on anger preceded by provocation as a defence if

he commits a crime while thus enraged?
May influence various elements of crime such as:

58

Conduct (involuntary); intent; degree of punishment; criminal capacity

(NB)
Must consider policy considerations separate doctrine approach vs. logic &
legal principles
o

9.2.3.5. Historical Development

Roman Dutch times

o Not regard anger, jealousy, other emotions as an excuse for any criminal
conduct
o Only relevant as factor which might mitigate sentence if emotions were
justifiably provoked
Rumpff Commission
o Not regard affective function of the mind, which regulate emotions such
as hatred, love and jealousy, as relevant to the legal inquiry into criminal
capacity
Before 1950
o Provocation never seen as complete defence
o Merely lessening of charge / mitigation of sentence
o Murder = death penalty
o S 141 Transkeian Penal Code
Requirements
1. Accused must be provoked by wrongful act or insult
2. Provocation must result in accused losing self-control
3. Provocation must have been of such a nature that ordinary
person would have lost control
4. Accused reacted immediately to provocation
o Separate doctrine approach (objective test)
- What was provocation and reaction to provocation
o NB for policy considerations, not legal principles why?
People are expected to control their emotions
Reaction to provocation often amounts to revenge
1950-1981
o Gradually more towards a general principles approach (logic & legal
principles): judges could use discretion
o Partial excuse rule was rejected
o Provocation no longer regarded as distinct defence/doctrine with its own
requirements
o S v Mokonto 1971
Facts:
- Evil witch thought killed brother
- She threatened him he was convinced she was a witch and
so killed her (cut off head and her hands)
Court:
- Test for provocation is subjective test
- Take into account surrounding circumstances
- Did not allow him the defence
o S v Chretien 1981
Somebody can be acquitted if not all elements proved
Approach must be based on legal principles
1981-2002
o Approach based on legal principles influence of Chretien

59

o
o
o

Is an accused responsible for / should he be held liable for his emotionally

unstable personality? Probably not
Courts recognise several cases confirmed the principle that
provocation/emotional stress may be a complete defence
Must determine if one of the elements of crime is absent due to
emotional stress/provocation

2002: Legal position after S v Eadie

o Influence of judgement on defence of non-pathological
incapacity due to provocation/emotional stress

criminal

9.2.3.6. Elements of the Crime that can be affected by

Emotional Stress/ Provocation / Legal Consequences
2.3.6.1. Conduct

Defence of sane automatism

o Due to emotional stress/provocation an accuseds conduct is not
controlled by his conscious will
o Very difficult to succeed with defence!
S v Arnold 1985
- Court found that he lacked criminal capacity
- Crit: acted in bold and direct way involuntary conduct?
S v Henry 1999
- Divorced visiting rights ex-wife refused to let daughter
sleep over at Henry
- Henry killed ex-wife and ex-mother-in-law & pointed gun at
ex-father-in-law
- Defence: sane automatism didnt know what was doing
saw blur & heard noises
- No evidence to prove
- Charged with murder
S v Potgieter 1994
- Husband & accused abusive relationship he had assaulted
him before
- Called locksmith to open safe to retrieve pistol
- In middle of night shot him
- Claims did not remember doing it (her defence = sane
automatism)
- Goal directed steps? Locate pistol, cock pistol, aim at target
etc. Her mind must have been in control of muscle
movements.
- Cannot succeed with the defence of involuntary conduct due
to emotional stress

2.3.6.2. Criminal Capacity

NB for accuseds state of mind as a consequence of emotional

stress/provocation
What role does affective capacity (e.g. emotional feelings like anger) play with
regard to criminal liability?
NB for the influence of the affective capacity on cognitive and/or conative
capacities
Before S v Eadie

60

Proof that accused suffered from mental illness/defect was not required
for defence of criminal incapacity due to provocation to succeed
o Like intoxication, emotional stress/provocation recognised as a nonpathological cause of criminal incapacity
o Was accepted that the defence of emotional stress/provocation leading to
criminal incapacity (lack of cognitive or conative capacity)
Accuseds mere accusation of emotional stress, etc. Is insufficient: defence
treated with extreme circumspection
Accused had to lay a proper factual basis/foundation for the defence of nonpathological lack of criminal capacity expert evidence but no onus of proof
Was difficult to succeed with defence courts will not lightly accept emotional
stress as a defence BUT sometimes successful
CASES:
Good factual foundation = successful
o S v Campher 1987
Facts:
- Married to crazy man: thought he was Hitler, God, terrified of
spirits
- Solution: his wife had to stay awake and pray to keep spirits
away
- Abusive and cruel to wifes children from previous marriage
- Tired & unhappy:
- He loved birds went to pigeon cage
- Threatened her & grabbed her she ran and fetched a
firearm
Decision:
- Judge Viljoen: Defence - Yes on legal groundsand based on
facts yes
- Judge Jacobs: Defence - No
- Judge Boshoff: Defence Yes, Facts No
- 2/3 said she could in theory but in practise she had not
proved
Defence did not succeed but punished leniently
o S v Moses 1996
Facts:
- Unhappy childhood sexual abuse; child prostitute; family
kicked him out when found out he was homosexual; stayed
in squatter camp; depressed
- Angry and killed partner when partner announced he was
HIV positive (ornament & knife)
- Cleaned blood off knife
- Physiatrist evidence
- Defence: could not stop self from committing (lacked
conative capacity)
Decision:
- Provoking evidence etc.
- Court decided that he was provoked & lost control
- State failed to prove he had necessary conative capacity
beyond reasonable doubt
- Judge Hlope: acquitted
o

S v Gesualdo 1997
Facts:

61

Argentinean business partners

One day got so angry that he shot Fernandez eyewitness
to murder
- Accused: disorientated, claimed he had amnesia
- Defence:
Lacked
non-pathological
criminal
capacity
(specifically conative)
- Court: he could draw a distinction between right and wrong
but could not control himself accordingly
Decision:
- He didnt try hide his weapon carried on as if not commit
crime
- He did not have criminal capacity to understand act
- Not guilty: lacked capacity to self-control

S v Wiid 1990 (A)

Facts:
- Battered wife: broke teeth, concussion
- Husband having extramarital affair
- Shot husband
- Defence: lacked criminal capacity
Decision:
- No proof beyond reasonable doubt that she had criminal
capacity
- She was acquitted

S v Nursingh 1995
Facts:
- Student shot and killed mother and grandparents while
friend was in the house
- Friend said Nursingh looked dazed and cried.
- History of sexual and psychological abuse by mother; e.g.
had a bed in his mothers room = evidence
- Defence: lacked criminal capacity
Decision:
- He has no conative capacity
- Judge impressed by evidence could not distinguish
between right and wrong
- He was acquitted of all charges

S v Arnold 1985
Also tried to prove innocence on grounds of lack of criminal
capacity; earlier defence of involuntary conduct already succeeded
though

S v Eadie 2002
Facts
Driving under the influence
Eadie kept getting irritated by care behind him e.g.
flashing lights, overtaking several times
Eadie stopped the car and confronted him - hit him with a
hockey stick
Wife had driven away when they stopped, came to pick him
up again

62

Eadie went back to scene, got rid of hockey stick; showed

the police a different pair of jeans to the bloody pair he had
on, but was caught out by a witness
Defence: lacked conative capacity (non-pathological criminal
incapacity)

High Court
E acted in a purposeful, focused, goal-driven manner + his
deceitful behaviour afterwards; E didnt lose control, he just
lost his temper
SCA
Agreed with court a quo
Courts approach
Judge Navsa emphasises that it was necessary to approach
the defence of non-pathological criminal incapacity with
extreme caution
1st interpretation
Problem with defence concerns its practical application, not
the underlying legal principles applied retention of
subjective test for criminal capacity
NB for legitimate inferences: in assessing an accused
persons evidence about his state of mind [court must
weigh] it against his actions and the surrounding
circumstances and [consider] it against human experience,
societal interaction and societal norms.
I.e. the law hasnt changed; State is assisted by the natural
inference 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
Inference must be the only reasonable one that can be
drawn and must be consistent with all the proved facts can
operate against or in favour of accused (* see later under
fault/intent)
2nd interpretation
Is defence of provocation/emotional stress leading to
criminal incapacity partially rejected?
Cognitive capacity
o Accused can still rely on defence where he is
incapable of appreciating the distinction between
right & wrong due to emotional stress or provocation
o Judge Navsa pronounces that there is no distinction
between sane automatism and non-pathological
criminal
incapacity
due
to
emotional
stress/provocation where conative capacity is
influenced both concern lack of self-control
o This would imply that if accused can distinguish
between right and wrong, he can only succeed with

63

the defence if he has acted involuntarily (very difficult

to succeed with this automatism defence)
Person who lacks criminal capacity due to lack of
conative capacity, but who cannot show that they
acted involuntarily, will be held criminally liable even
though one of the elements of the crime is missing
(namely conative capacity)?

Criticism of 2nd interpretation:

o Therefore despite judges words, Burchell argues that
the distinction between sane automatism and lack of
conative capacity should nevertheless be maintained
o Conative inquiry concerns the capacity to act
voluntarily while the voluntariness inquiry concerns
whether accused actually did act voluntarily/control
his conscious will
o Overlap: it cannot be disputed that someone who acts
involuntarily, inevitably also lacks criminal capacity
o Eadie judgement does not necessarily imply that the
SA test for criminal capacity has completely changed
to an objective one (subjective) test for conative
capacity still applies
o Judge says he is unconvinced that the conative leg of
the test for capacity should fall away
o Judge does not expressly/specifically over-rule
previous decisions about subjective test for criminal
capacity
o BUT judge does indeed level harsh criticism against
distinction between voluntaries inquiry and conative
leg of test for criminal capacity
Doesnt like the idea that a defence that alleges
that the accused gave into temptation or can
argue that the devil made me do it can lead
to acquittal

3rd interpretation (Burchell)

According to Burchell the test for conative capacity ought
consider whether accused could reasonably be expected
have acted differently in the circumstances
I.e. accuseds conduct should be measured against
normative objective/standard e.g. the societal norm
level-headedness, sobriety, etc.

to
to
a
of

Practical application
o Policy considerations vs legal principles (NB; theme of provocation and
intoxication)
o What is decisive according to Eadie case?
Policy considerations
o What do you think ought to be decisive?
Distinguish between sudden flare-up / loss of temper and gradual
disintegration of power of self-control

64

Road rage vs battered wife?

2.3.6.3. Intent

Provocation that excludes intent

o Even where criminal capacity is not excluded, provocation may exclude
intent
o Accused may lack consciousness of wrongfulness accused may perhaps
not realise the implications of his conduct / will not directed at
consequence of conduct
o E.g. murder: no intent to kill = guilty of culpable homicide if reasonable
person would not have lost self-control
Provocation which confirms existence of intent
o Provocation may not necessarily be relied upon as a defence: may have
opposite effect (evidence confirming existence of intent) indicative of
motive
o S v Mokonto 1971
Man thought that woman was a witch and had killed two of his
brothers went to visit her she said you will not see the setting
of the sun today he killed her, chopped her head and hands off
First tried to use PD, unsuccessful; then tried provocation, also
unsuccessful

2.3.6.4. Punishment

Provocation as a ground for mitigation of punishment

o Impulsively committed crime less morally blameworthy than one
committed with pre-meditation
o S v Campher
o S v Di Blasi 1996

10.Elements of the Crime: FAULT or MENS REA

10.1.

Introduction

Crime not only unlawful human conduct with criminal capacity, FAULT must also
be present
Fault = intent or negligence
All common law crimes require intention (except culpable homicide and
contempt of court committed by an editor of a newspaper)
Statutory crimes require either intention or negligence
NO liability without fault: actus non facit reum, nisi mens sit rea (the act is not
wrongful unless the mind is guilty)
Implies blameworthiness because an accused initiated/planned a prohibited
consequence
Ratio
1. Accused must be of a blameworthy state of mind not just morally, but
also legally
2. Links with theories of punishment, specifically:
- Retribution: just desert to get punished exact revenge for
conduct (deserves punishment if had fault)

65

Fault
o
o
o

Deterrence: rational actor autonomous decision law rightfully

blames because people have free will / freedom of choice
Only liable for acts that they are responsible for conduct
planned or for consequences (should have been) anticipated
investigation
Looks at subjective state of mind (when determining intent)
NB: determines blameworthiness
If blameworthiness is present, determines degree of blameworthiness
(intent or negligence)

10.2. INTENT (ION)

Cases

S v Hartmann 1975 (3) SA 532 (C)

R v Peverett 1940 AD 213

S v Nkwanyana 2003 (1) SACR 67 (W)

R v Jolly 1923 AD 176

10.2.1.

Definition & Introduction

NB: accused is at fault where he directs their will towards committing unlawful
conduct knowing/foreseeing it to be unlawful
SUBJECTIVE enquiry of mens rea in the form of intention
2 elements required (both must be present for fault mens rea to exist)
1. Knowledge/foresight of existence of ALL definitional elements of crime
(including knowledge of unlawfulness/consciousness of wrongfulness): be
aware that done something wrong which is prohibited as a crime
- E.g. hunting, intend to kill bok, kill person no fault. Cannot
foresee that kill person
- Includes conduct & causation & unlawfulness [consciousness of
wrongfulness]
2. Direction of will towards a prohibited act or result/consequence
- = Dolus = intent

Forms of intention

Why differentiate? Grade of intention are relevant for appropriate punishments

for common-law or statutory offences

10.2.2.

Dolus Directus

Actual intent = deliberate, actual malicious

Where the prohibited act/consequence is the accuseds main aim & object
Accused directs will towards performing a prohibited act / causing a prohibited
consequence (aim and object was to do unlawful act / cause consequence)
Examples
o A Break into lecturers office to steal question papers
o Xs main aim was to kill Y

66

10.2.3.

Unlawful act/consequence not accuseds aim and object, but accused realises
that if he/she wants to achieve main goal, prohibited act/consequence will of
necessity be committed / result from act
Foresee act/consequence as virtually certain or substantially certain
Examples
o Break into office & break door down main aim is not to cause malicious
damage to door main aim is to steal papers
o X did not intend to kill Y but beat him up badly

10.2.4.

Dolus Indirectus

Dolus Eventualis

Main aim an object is something else

Lawyers intent
Accused subjectively foresees the possibility that, in achieving his main aim, the
prohibited event/consequence may ensue AND reconciles himself to this
possibility
Foresees possibility that another/secondary (prohibited) event/consequence
may also ensue
BUT is not deterred and proceeds with original plan takes a chance, is
reckless
Irrelevant whether or not accused wished the result to follow (desire)
Confined to foresight of REAL (i.e. substantial or reasonable) possibility of a
prohibited consequence resulting or unlawful circumstance existing
Examples
o Man shooting ducks on a lake might shoot a person who is sitting
opposite him

10.2.5.
Distinguish:
Indeterminatus

Determinatus

&

Dolus

Dolus Determinatus Specific intent

o Accuseds will/aim and object is directed towards a specific event or
consequence
o Specific intention may go together with dolus directus, indirectus or
eventualis
o Examples
A shoots B with the intention of assassinating him.
Dolus Indeterminatus General intent
o Accused does not direct will towards a specific event/consequence
o No particular intention directed towards a specific victim act may
impact on anyone and identity of victim irrelevant/unimportant
o General intention may go together with dolus directus, indirectus or
eventualis
o Examples
A throws a bomb into a crowd or derails a train no particular
intention to kill an individual in the crowd

10.2.6.

Dolus

Distinguish: Intent & Motive

Motive = reason for conduct is separate from/independent to intent

Motive behind act is irrelevant in determining whether accused acted
intentionally

67

Whether a person has an evil or praiseworthy motive does not influence

criminal liability BUT may influence sentencing
Problem: motive = complex and subjective and therefore an unreliable basis for
determining criminal liability
o Exception = negotorium gestio (acting in the interest of another) motive
is relevant
NB: moral guilt is NOT necessarily legal guilt
Examples
o R v Peverett 1940
Lovers agreed to a suicide pact idea was initiated by the woman
but the man was hesitant carbon monoxide poison coming
through a pipe while sitting in a car neither of them died though,
only hospitalized
Peverett was charged with attempted murder because he set
everything up reluctant not a defence though lack of
motive/desire lack of intent
Fined 30 pounds
o S v Hartmann 1975
See notes on consent (euthanasia)
The son entertained the intention punished lightly
o S v Nkwanyana 2003
Woman not terminally sick but suffered from depression, anorexia
tried to commit suicide several times asked N to help her kill
herself he refused but then agreed when she said she would ask
someone else
Point of departure = irrelevant that she consented; she planned
her own killing but N was still guilty got a suspended sentence

10.2.7.

DETAIL: DOLUS EVENTUALIS REQUIREMENTS

Cases

S v Sigwahla 1967 (A)

S v Ngubane 1985 (A)

S v Masilela 1968 (A)

S v Goosen 1989 (A)

Introduction
o

o
o
o

DEFINE: The accused foresees the possibility that an unlawful

consequence/event might occur, in substantially the same manner as that in
which it did actually occur, or the prohibited circumstances might exists but he
accepts this possibility into the bargain i.e. he recklessly decides to carry on
anyway
Requirements: foresight, possibility, correlation between foreseen and actual
manner of consequences occurring and recklessness
May apply to both consequence crimes (accused foresees consequence) and
circumstance crimes (accused aware of/has knowledge of specific circumstance)
Examples
Keeping a package for someone when you foresee it might be full of drugs

History
o

Before 1945

68

Presumption of intent: presume persons intend the natural and

probable consequences of their acts = problematic [what if acted
without intent? neglects the accused actual state of mind. Only
concerned with what a reasonable person in position of accused
would have done. Therefore, people without fault suffered
punishment]
Therefore, presumption replaced with dolus eventualis
Also concerns the consequences of an act but rather
requires that person should have realised that the
consequences would have occurred (rather than the intention
of those consequences)
Common law: dolus eventualis suffices for guilt, actual intent
need not be proven
Some statutory crimes may expressly require actual intent

Requirements in detail
10.2.7.1. Foresight

Foresight of possibility of consequences or circumstances

o Also requires correlation between foreseen and actual manner of
consequence occurring
Accused does not necessarily desire/plan consequence; but human experience
indicates that the consequence will come about/is expected
Subjective test [prior to 1950 it was objective reasonable man]
o Accuseds subjective state of mind is NB
Only state of mind of accused himself/herself foresaw
consequences of his/her act
NOT whether accused ought to have foreseen
+ More in accordance with justice, excludes fictitious intent
- Unintelligent, superstitious and lacking foresight = more difficult
to establish their guilt
BUT foresight often determined by inferential reasoning [courts must
mentally project themselves into the position of the accused at the time]
o Ought to have foreseen
o Must have foreseen
o Therefore, did in fact foresee
Problem: is this not then an objective test? (I.e. conduct measured against the
fictional reasonable person, not a subjective one?)
BUT
o S v Sigwahla 1967
NB: The inference must be the only one which can reasonably be
drawn
I.e. cannot draw inference if there is a reasonable possibility that
accused did not foresee (reasonable doubt)

10.2.7.2. Possibility

Reconciliation/acceptance that result may occur (being reckless as regards this

possibility)
What is the degree of possibility that consequence will occur? What is the test?
o Certain? Probable? Possible?
o Debate solved:

69

R v Horn 1958
Foresee possibility of consequence is sufficient for criminal
intent
Foresight of real (as opposed to remote or faint) possibility?
o Courts: various approaches
o Snyman: must be a wesenlike/redelike possibility is distinction
between real and remote relevant here?
o Burchell = real possibility
o But SA Appeal Court prefers to consider the relevance of the distinction
where recklessness is being ascertained (not in foresight inquiry)

10.2.7.3. Correlation Between Manner Foreseen & Actual

Manner of Consequence Occurring

Concerns causal chain of events; what specifically does the accused have to
foresee?
Rule only applicable to consequence crimes
Snyman & De Wet:
o Accused does not have to foresee the precise or even general manner in
which death occurred accused must have just foreseen the real
possibility of the consequence in general
o Mistake as regards causal sequence: is a question of causation, not intent
Appellate Division differs to this opinion:
o The intention element (in consequence crimes) is NOT satisfied if the
consequence occurs in a way that differs markedly from the way in which
the accused foresaw the causal consequence
o Must have a substantial correlation between foreseen way in which
consequence MIGHT have occurred and way that it ACTUALLY occurred
o But where main aim and object (dolus directus) was to bring about death,
in general, the way in which death occurred would be irrelevant
o PRESCRIBED: S v Goosen 1989
Intent element is not satisfied if (foreseen) consequence occurs in
a way which differs markedly from the way in which the accused
foresaw the causal sequence
Discussion: Goosen
o Why doesnt one merely use legal causation to limit liability?
o Field of application of Goosen?
Where deviation is not regarded as a NAI
E.g. thin skull rule
Common purpose cases
Dolus eventualis, not dolus directus: if main aim and object was to
kill then cannot rely on this
S v Masilela and Another 1968
o Masilela & friend want to kill old farmer
o Hit on head, then strangled with his tie; then burnt
the house down
o Autopsy found that he died as a result of fire was
still alive after strangling
o Main aim & object: wanted to kill dolus directus
[different to Goosen intent to rob]
o Accused tried to use this as a defence but was
unsuccessful

70

Thin skull rule: take victim as find them

E.g. hold up old lady, weak heart = cause of death, no intention to
kill. Mark difference?
Snyman strongly criticises this judgement. He believes that
mistake regarding the causal sequence is not material for criminal
liability. Wants to use legal causation. But often doesnt work.
Common purpose case e.g. Goosen
Required to be shown: shared the same aim as perpetrator and
have necessary fault

Important limitations in Goosen rule

Relevant mistake wrt causal sequence context of dolus eventualis only and not
dolus directus
Precise way in which consequence occurred does not need to be foreseen only
general way

10.2.7.4. Recklessness (Reconcile themselves/accepting into the

bargain)

NB for accuseds state of mind with regard to acceptance of possibility of

consequence
Recklessness = accused consciously accepts a risk
I.e. reconciling oneself to ensuing result/accepting foreseen possibility into the
bargain/accused not deterred by prospect
Also called volitional element of dolus eventualis test
o Burchell argues that this component is unnecessary: sufficient to prove
that real (as opposed to faint) possibility of consequence was foreseen
o BUT case law differs from the siening of dolus eventualis
S v Ngubane 1985 (A)
Define recklessness: accepting the foreseen possibility into
the bargain
Jansen, J: must distinguish between real possibility and
remote/faint possibility
If continue despite foreseeing real possibility infer that he
reconciled himself with the consequence
SA courts accept volition especially for conscious negligence
Real and remote possibility?

10.2.8. Distinguish: Dolus Eventualis & Luxuria (Conscious

Negligence)

Luxuria = accused foresees unlawful consequence but (negligently) does not

reconcile himself with it
Shows why important to have conscious volition
Dolus Eventualis = accused foresees unlawful consequence and recklessly
reconciles himself with it
S v Maritz 1996
o
o

Facts:
- Taxi driver boom gate down - jumped train line - 10 children died
Court:
- Subjectively for saw possibility of death & danger
- HC: guilty of murder & attempted murder = 20 years imprisonment

71

Appeal: agreed with HC inferential reasoning subjectively for

saw death of passengers
Different? Volitional element = Reconcile himself with possibility?
Reference to Ngubane-case.
Taxi driver: dangerous to himself & passengers must have taken
into account he could have died.
He did not have dolus eventialis: finding of murder was overturned
= 8 years imprisonment.

10.3.
IGNORANCE
Negligence)
10.3.1.

&

MISTAKE:

Influence

on

Fault

(Intent

&

Link Between Ignorance/ Mistake & Intent

Accused must have intent

o Intent requirements (subjective test):
1) Direction of will towards 2) Knowledge of existence of all elements of crime
(circumstances/consequences mentioned in definition of
proscription), including:
Unlawfulness of conduct (knowledge/awareness of
unlawfulness/consciousness of wrongfulness)
E.g.
Theft? Taken somebody elses wallet thinking it is yours didnt
know = no intent = defence
Goosen-case: mistake wrt chain of causation
- G foresaw possibility of death but not in that way (marked
difference) = mistake wrt causal chain of events ito dolus
eventualis
Knowledge of unlawfulness defence: Putative ground of
justification (genuinely believe lawful/justified) e.g. thought had
consent, private defence
Knowledge of unlawfulness defence: Ignorance of the law

Therefore, lack of knowledge (due to ignorance/mistake) should be relevant

when establishing fault (intent)

10.3.2.

What is ignorance/mistake?

Ignorance & mistake are interchangeable words in law

Must be bona fide [subjective test]
Ignorance = total want of knowledge
Mistake = there is knowledge, but wrong conclusion is implied (species of
ignorance)
Ignorance/mistake need not be reasonable
o = A (subjective) question of fact to determine whether there genuinely
was a mistake/ignorance
o E.g. taking somebody elses wallet, Tokoloshe-case reasonable person
be more careful? Stupid mistake? Why courts allow unreasonable

72

mistake? = It is a subjective test cannot include objective elements

but just be genuine.

Types of mistakes:
10.3.3.

Ignorance / Mistake of Fact

Material/essential mistake
o Must be a mistake regarding an essential fact
o How determine if essential or not?
- Mistake about the elements contained in the definition of
proscription of crime (including unlawfulness)
o E.g. what might be essential? Depends on crime {look at definition of
crime}
Rape: non-consent for sexual penetration = defence: I did not
know that there was no consent
Incest: sexual penetration between close family relative = defence:
cannot argue no consent as not part of the definition of the crime,
but could argue did not know that was a family relative
Murder: Shooting what you think is an animal and then it turns out
to be a human being = defence: genuine mistake regarding the
punishable conduct (not a crime to kill an animal. Genuine
mistake)
Theft: taking somebody elses possession without knowledge or
consent = defence: mistakenly taking a computer you thought you
had been given permission to have
o Does not include mistake as to motive e.g. killed a man that you thought
was having an affair with your wife, killed the wrong twin thinking it was
the other = no defence.

*NB: definition of the crime!

Mistake relating to chain of causation
o See discussion of S v Goosen

Aberratio ictus
o Going astray of the blow
o E.g. A intends to kill B, shoots at him but the bullet misses and hits C
But due to As intention to kill, A is guilty of murder of C without
the prosectution having to establish an intention to kill C
specifically
o A must have foreseen Cs death as a real possibility (legal intention
dolus eventualis) and accepted this risk into the bargain
o But if did not foreseen possibility, but a reasonable person would have, A
would be guilty of culpable homicide
o Sole question: whether accused had actual intention or dolus eventualis?

Error in objecto
o A mistakenly kills C thinking that C is in fact B

73

10.3.4.

Ignorance / Mistake of Law

10.3.4.1. Introduction & History: The Ignorantia Iuris Rule

Knowledge of law is required; accused must know that law prohibits his conduct
as a crime (unlawful)
Position before 1977 (Anglo-American law)
o Ignorantia iuris neminem excusat: Ignorance (or mistake) of the law is
no excuse, everybody is presumed to know the law
o Therefore, ignorance/mistake of law = no defence
o Why?
Welfare of society and safety of state cannot be judged against
what that subjective person knew to be law, must be a standard
set by the state
People will maybe refrain deliberately from acquiring knowledge
of their legal duties
Practical difficulty of disproving such a defence
o Criticism
Do not have consciousness of wrongfulness
Subjective test could not have known
Difficult to determine if accused bona fide did not know
Many statutory crimes impossible to know the law
Therefore
fairness
and
justice
require
that
genuine
ignorance/mistake of law should exclude intention
Logic and legal principle
Snyman: impossible for a single person to know even for a lawyer
Knowledge of unlawfulness in SA law
o PRESCRIBED: S v De Blom 1977 [NB Long question: discuss critically
the case criticism and support] courts allow ignorance of the law as a
defence
Ignorantia iuris(ignorance of the law) rule no longer applies in RSA
In line with principles and logic knowledge on the part of the accused of
unlawfulness of conduct is required for mens rea in form of intention
o Exceptions?
Work in particular sphere of activity: you are expected to
know the law in your field of expertise/profession cant
use ignorance as an excuse
Where inherent badness/wrongness in crime i.e. murder,
rape

10.3.4.2. Critical Evaluation of De Blom & Present Position

Current position is that of De Blom

Support (Burchell)
o Only fair if somebody truly was ignorant cannot blame and say deserving
of punishment (avoids injustices)
o If not aware crime = no consciousness of wrongfulness = no intention
o Judgment is in line with legal theory and principle (test for intent is
subjective, not objective)
Floodgates argument?

74

Seems to work well in practice (is not abused) and decision followed by
courts
Defence is seldom use: usually dealing with regulatory offences (not
establish, well-known crimes) in the context of a work or professional
environment
Is not more difficult to assess genuineness of mistake of law than mistake of
fact must look at circumstances of case inferences

o
o

Does ignorance of the law apply for negligence?

o Rumpf addressed in case: if work in certain sphere of activity, you must
know how to act in that sphere
o Even if reasonable person did not know about regulation, you are specialised
in field more knowledge, expected to know more and regulations can be
liable
o Test for negligence is reasonable person (where as intention is subjective)
Criticism (Snyman)
o Goes too far to have subjective test unduly favours wrongdoer
o Is too subjective avoidable ignorance should not be a defence
o Should be objectively reasonable

10.3.4.3. Knowledge?

Meaning of knowledge
o Accused doesnt have to know that legal rule exists e.g. exact law or Act
actual knowledge of crime
o Is sufficient if he foresees the possibility of unlawfulness (due to existence of
the legal rule) and reconciles himself with it (dolus eventualis)

10.3.4.4. Unlawfulness?

Meaning of unlawfulness
o Not necessary that accused know the detailed requirements of the offence
charged must just know (or foresee possibility) that conduct was contrary
to law in the broad sense
o Knowing that conduct = morally wrong?

10.4.

DEFENCES EXCLUDING INTENT

Cases

S v Joshua 2003 (SCA)

S v Naidoo 1997

S v De Blom (supra)

S v Goliath (supra)

S v Goosen (supra)

S v Chretien (supra)

S v De Oliveira 1993 (A)

S v Mokonto (supra)

75

10.4.1.

Ignorance & Mistake

10.4.2.

Youthfulness

10.4.3.

Insanity

10.4.4.

Intoxication

10.4.5.

Provocation & Emotional Stress

10.4.6.

Putative Grounds of Justification (form of mistake)

[Expect an exam question on this!

Unlawfulness (g.o.j.)
Established before fault
No degrees of unlawfulness
Ex post facto objective test:
Legal convictions of community (boni
mores)
Judgment of ACT

Fault (Intent)
Established after unlawfulness
Degrees of intent
Subjective test:
Blameworthy state of mind
Judgment of ACTOR

Subjectively believes that did not act wrongfully

Can blame actor for doing what he has done?
What happens if all requirements for successful reliance on a g.o.j. are not met?
- E.g. limits/bounds of defence are exceeded

Does accused still have a defence?

- Can blame for genuinely believing what he did was lawful
- Accused genuinely but mistakenly (subjectively) believes he complied
with the requirements for reliance on g.o.j. BUT is (objectively) not the
case
- He believes he is justified intent is missing

BUT what about fault can accused be blamed for his conduct?
a. Intent?

o
o
o
o
o
o

Determined subjectively person must have consciousness of wrongfulness

(CoW)
E.g. thought somebody had given consent but not sure have CoW because
prepared to take chance that had no consent.
E.g. absolutely thought had consent no CoW
C.o.w. is absent where accused bona fide but mistakenly believes he
complied with g.o.j. requirements
NB: Due to mistake the accused did not direct his will towards committing a
wrongful act, and therefore lacks subjective intent
E.g. rape truly believed partner had given consent. Putative ground for
justification?

b. Negligence?
Assuming that there is no c.o.w, is accused necessarily not guilty?
Must still look at negligence (if applicable)
Test: must measure conduct against standard of reasonable person if
accused acted unreasonably, is negligent
o Test for negligence: would a reasonable person have foreseen
o
o
o

76

o
o

E.g. killed a man truly believing him to be a robber. Negligent option for that
crime? Culpable homicide
BUT = exception only applicable to crimes that allow for negligence (Most
crimes do not have a negligent element)

Application
S v De Oliveira 1993
S v Joshua 2003 (SCA)
S v Naidoo 1997
S v Goliath 1972
Conclusion
If a putative g.o.j. is present, the element of fault is missing therefore no
criminal liability i.e. = complete defence
NB: above principle applies to any g.o.j.

10.5. NEGLIGENCE (CULPA)

Cases

S v Ngubane (supra)

R v Mbombela 1933

S v Van As 1976 (A)

S v Goosen (supra)

S v Van der Mescht 1962 (A)

S v Ngema 1992
10.5.1.

Definition & Introduction

Is a form of fault that applies to:

- Common law crimes such as culpable homicide (man slaughter),
newspaper editor
- Statutory crimes parliament can decide often when common welfare at
risk such as negligent driving
Rex v Mbombela 1933
S v Ngema 1992
S v Ngubane 1985
Form of fault
Accuseds conduct does not conform to the standard of the reasonable person
in the same circumstances i.e. a reasonable person in same circumstances
would have acted differently, and therefore accuseds conduct is blameworthy
Reasonable person?
Personification of objective standard
Refers to average, normal person
Does not take personal, subjective characteristics

10.5.2.

Test for Negligence

1. Would reasonable person in the circumstances of the accused have foreseen the
possibility that the unlawful
a. Consequence would occur, or
b. Circumstance would exist?

77

2. Would reasonable person have taken steps to guard against that possibility?
3. Did the accuseds conduct differ from that expected of a reasonable person (i.e. did
he/she fail to take reasonable steps, etc.)?

10.5.2.1. Reasonable Foreseeability

Possibility, not probability of consequence must be foreseeable

Test is not abstract must always determine negligence relating to the accuseds
actual circumstances
Culpable homicide: death, not merely injury must be reasonably foreseeable
E.g.
o S v Van der Mescht 1962
o S v Van As 1976

10.5.2.2. Taking Steps

Is possibly not necessary to take steps in following situations, as the reasonable

person would not have:
o If possibility of risk materialising is extremely slight
o If it is very impractical, costly, difficult or inconvenient to take steps
o If activity is socially useful/is urgent or laudable
E.g. ambulance driving through red light

10.5.2.3. Comparison: Reasonable Person & Accused (Failure to

foresee/take reasonable steps?)

No degrees of negligence
o Even a slight deviation from the standard of the reasonable person is
enough to mean liability for negligence
But degree may play a role when punishment is imposed

10.5.3.

Test for Negligence: Partially Subjective?

Courts use qualified objective test:

o Take accuseds external circumstances into account
E.g. driving at night vs during day
o But are subjective knowledge/characteristics of accused ever taken into
account?
o Imperitia culpae adnumeratur
Lack of skill amounts to negligence
o Expert is tested against standard of reasonable expert
o If person has more knowledge/experience than reasonable person, this is
take into account
o Objective test is relaxed UPWARDS, not lowered
Exception? Children
Discussion: lowering of reasonable person standard?
o Why maybe necessary?
Other instances apart from stupidity
o R v Mbombela 1933
o If (partially) subjective: what factors may be taken into account?
Beliefs/values
Intelligence; level of education
Background; culture
Age (taken into account to certain extent children)
Superstition

78

Other individual peculiarities?

o S v Ngema 1992
Burchells solution: subjective v objective
o Is not necessary/more desirable to approach negligence more
subjectively
o Subjective test for criminal capacity
o Potentially unlimited list of factors that may lead to criminal incapacity
Including above-mentioned factors
o BUT what about judgment in Eadie case?
Not in favour of broad application
o However if courts prepared to extend its application, can be a solution

Snymans solution: subjective v objective

o Heterogenous/diverse society makes objective test alone problematic
o Cannot always blame accused for not complying with standard of
reasonable person
o Possible solution: divide test in two

Conclusion
o Test applied by courts is definitely more objective than subjective
o BUT there needs to be scope for (normative) value judgment in
determining criminal liability
o Is NB for considerations of fairness to (sometimes) individualise the
standard of the reasonable person is not as relevant whether this occurs
at the criminal capacity stage or when negligence is determined

10.5.4.

Relationship Between Intent & Negligence

Comparison between

Intent

Negligence
Both forms of fault assessing blameworthiness

Accused knows/foresees that conduct was

prohibited and unlawful

Accused should have known that conduct

was prohibited and unlawful, but didnt

Test = subjective

Test = (mostly) objective

Degrees of intent

No degrees of negligence

Relationship between
o Possibility of overlapping
o S v Ngubane 1985
The existence of intention does not exclude the existence of
negligence on the same facts
Facts
N had quarrel with woman drunk in the end stabbed her
to death with knife
Murder decided to plea guilty to culpable homicide judge
wasnt sure if he was guilty, told him to plea not guilty so he
did eventually found N guilty of murder
Appeal court said it was a procedural mistake, so changed it
to culpable homicide but then went further and
investigated can one be negligent if already proved there
was intent?

79

Volitional state of mind

Criticism (Snyman)
Theoretical
How can one simultaneously foresee and not foresee?
Policy
Was actually procedural mistake must be fixed by
procedural means

11. SPECIAL FORMS OF CRIMINAL LIABILITY

General principle
o POD: No liability without fault (Actus non facit reum, nisi mens sit rea)
o There are 2 exceptions to this rule (do not enjoy real following in RSA law)
Strict liability (versari in re illicita) and vicarious liability
o Strict liability?
= State must prove all element except fault beyond reasonable
doubt (intention or negligence)
Therefore, accused has no opportunity to raise a defence excluding
fault

11.1.

STRICT LIABILITY

Case:

S v Van der Mescht 1962 (1) SA 521 (A)

DISCREDITED does not require State to prove fault

Application of strict liability:
o Versari in re illicita
Person is liable for unintended consequences of illegal activity if
doing something illegal
E.g. hunter without license or illegal to hunt there (poacher) trips,
gun goes off kills another person. Apply VirI rule = liable for
murder
S v Van der Mescht 1962
Illegal to have unwrought gold
Melted to retrieve gold but amalgam emitted mercurial gas
(poisonous) which killed his 4 children in the house
Trial court: culpable homicide negligently did not foresee
possibility of death
AD court: majority = did not act negligently but attempted
to hold him liable based on strict liability
Court found: versari doctrine is NOT in accordance with
contemporary view of criminal liability, thus should not be
followed in RSA

80

Accused must be blameworthy & fault ito all common law

crimes must be proved beyond reasonable doubt
Versari doctrine also rejected in S v Bernardus 1965

Statutory offences/crimes?
In principle this form of liability can be applied and referred to a
no-fault liability = liability without proof of intention or negligence
Context used? Public welfare offences (regulatory offences)
Maintenance of certain standards of safety and hygiene in
commercial, industrial and social undertakings e.g. factories,
mines, environmental pollution, manufacture and sale of
food and medicines, etc.
The prosecution should not be required to establish fault (or
rebut the accuseds defence based on ignorance or mistake)
can be justified on a number of grounds
Why? Based on utilitarian arguments
In context of protection of public it is necessary to have
strict liability:
1. SL contributes to the efficient administration of regulatory
legislation
2. SL encourages and stimulates compliance with the
provisions of legislation
3. Such offences are not, in their nature, true crimes
4. They only attract light or nominal penalties
Parliament does not say what fault was necessary
Presumption that fault is a requirement when parliament
does not state
Interpret in favour of liberty
Courts utilise certain considerations to establish the
intention of the legislature concerning the applicability of
strict liability
Considerations used if courts unsure of legislature:
Context of provision
Wording of provision e.g. maliciously shows state of
mind fault is a requirement
Purpose of provision
Nature and extent of punishment
The ease with which the provision may be evaded

Criticism of strict liability legislation

o Conduct is not blameworthy?
Could lead to a conviction despite a reasonable doubt of guilt
Deprive accused of opportunity to raise defence excluding fault
Not justifiable in open and democratic society based on human
dignity, equality and freedom
o May be unconstitutional
Right to fair trial denied chance to raise certain defence
Right to equality treated differently to somebody where strict
liability does not apply
Right to freedom
Right to security of the person

81

OReagan reaffirmed that fault is the essence of criminal liability in SA &

in CC of Coetzee there is a strong indication that the Judge found strict
liability unacceptable
Objections based on punishment theories
Especially deterrence, retribution, prevention and rehabilitation
E.g. If = no free choice; unavoidable to do something wrong how
can someone be deterred; how does it prevent someone from
committing the crime? Why do you need rehabilitation is do not
have a guilty mind?
Negligence-based liability can serve as a middle ground
Satisfy public interest by ensuring compliance with high standard
of conduct
Public protected but not unfair to accused
Suggestion: raise the standard of reasonable care used for
determining negligence
Only a few exceptions where strict liability still used e.g. parking and
speeding fines

VICARIOUS LIABILITY

11.2.
Definition
o
o

Accused is held liable for a crime committed by someone else

Example: employer is liable for a delict (civil wrong) committed by his or
her employee if the delict was committed in the course and scope of the
employees employment
The special relationship between the parties (usually employer and
employee) forms the rationale for holding one person vicariously liable for
the wrong committed by another employee must be at fault

Background

Common law
o General rule = a person only liable for crime of another if he authorized
or procured its commission or took part in it
o E.g. woman authorized a hit man to kill her boyfriends child.
= Guilty based on common law principle

Statutory crimes
o Vicarious liability only applicable for statutory crimes
o Very common in delictual law
o Exceptional cases: only if statue imposes vicarious liability expressly or
by implication
o Examples
Someone smokes in restaurant legislation: no smoking in public
restaurant owner fined, not the person
Minister van Polisie v Ewels: Minister liable for policemans
crime

VL is a manifestation of SL (same constitutional comment against it apply)

In CL NO such general principle as VL is recognised

Rationale of VL in Criminal law

82

Policy considerations regarding public welfare (same as strict liability)

Legislature invoked notion of VL as device for ensuring the implementation of
public welfare legislation
o Employer has incentive to ensure that those in his employ comply with
legal provisions
o Employer may not hide behind the sins of employees

Distinction between strict and vicarious

Strict liability
Accused
committed
PERSONALLY

Vicarious liability
prohibited

act

Accused held liable even though he did

NOT personally commit the prohibited act

Not necessary to prove fault

Difference

Strict liability does not necessarily imply vicarious liability

Vicarious liability goes beyond the scope of strict liability negates principle
that criminal liability is based on individual fault more so than strict liability

Detection of vicarious liability

How does a court know if the legislature intended to impose criminal vicarious
liability or not?
o Factors/considerations
Object of enactment
Strict liability
Language used
Class of persons affected
Penalty

Elements of vicarious liability

Imposition of vicarious liability requires: unlawful conduct and (possibly) fault to

be established in respect of the accused
o

Unlawful conduct
Accused does not personally commit any act which unlawful
Can postulate unlawful conduct where accused is alleged to be
vicariously liable for the contravention of the statue
NB for relationship of the two parties generally only attributed
where parties are related as: employer-employee and principalagent
Employee
must
be
acting
within
scope
of
employment/authority

Fault
Uncertainty as to whether fault of employer is required
Ought to be a requirement (Burchell)
Possible defences

83

11.3

If fault is a requirement, employer is not precluded from

raising defences excluding fault such as defence of
ignorance or mistake
Disobedient employee?
o Is no defence if act done fell within scope of
employees employment
o UNLESS employer has issued express, specific
instructions not to commit the crime
Servants conduct is then placed outside his
scope of employment

CRIMINAL LIABILITY OF CORPORATIONS

[self-study]

84

12. PARTICIPATION IN CRIME

12.1. Participation Before Completion of the Crime

Must distinguish between participants

a) Perpetrators (includes co-perpetrators)
b) Accomplices

12.1.1.

PERPETRATOR

12.1.1.1. Introduction & Definition

A perpetrator is one with the necessary fault (mens rea) commits the unlawful
conduct and, thereby, satisfies requirements for liability contained in definition
of the crime
o Co-perpetrators = 2+ persons acting together
Perpetrators liability based on OWN unlawful conduct and fault not dependent
on commission of a crime by somebody else (not accessory)
In what situations is accused a perpetrator?
1. Perpetrator in his own right
Personally satisfies definitional elements of crime
2. Common purpose doctrine
Group of people act together to commit crime
3. Procures another to commit crime on your behalf (agent)
Not necessarily to be held criminal liable: Other can even be a child,
insane or an animal he cannot be held liable, but you as an agent
can be liable
Qui facit per alium, facit per se (he who does an act through
another, does it himself)

12.1.1.2.

COMMON PURPOSE

Cases:

S v Safatsa and others 1988 (A)

S v Mgedezi 1989 (A)

S v Dube 2010

S v Goosen (supra)

S v Lungile and another 1999 (SCA)

S v Motaung 1990 (A)

S v Danils en n ander (supra) obiter

S v Thebus 2003 (CC)

S v Molimi and another 2006 (SCA)

[NB: Exam question]

Introduction
Example
o A community suspect person X of being a rapist, community want to get
revenge on X, call him out of his house & decide to stone him to death. 1
stone hits him fatally (unsure whose stone it was). Some or all of

85

community are arrested and charged with murder. Use common purpose
doctrine to prosecute the community.
Definition
o Where two or more people agree to commit crime or actively associate
in a joint unlawful enterprise, each is responsible for specific criminal
capacity committed by one of their number, which falls within their
common design. Liability arises from their common purpose to commit a
crime. (Burchell)

Applicable
o Instance 2: Co-perpetrators
Share a common purpose to commit a crime
Fault: direct or foreseen or negligent
Difficulties in proving causation
E.g. Y, Z, Q throw stones at X, killing him; Y uses CSQN (but
for) test but for Y throwing stones, X would still have died
from other stones; Z, Q use the same logic
Therefore the task of the State is facilitated by use of common
purpose doctrine
Prosecution doesnt have to prove causal link between every
perpetrators conduct and the unlawful consequence (makes it
easier for the State to prosecute) = element of causation is
removed
Sufficient to prove they all agreed to commit a particular crime
actively or associated themselves with the commission of the
crime with the requisite fault
If this is proven then the conduct of the participant who actually
causes the consequence is imputed or attributed to the other
participants
But, not necessary to prove precisely which member caused the
consequence, provided that a member of the common purpose
group brought about the result

Types of common purpose

o

Prior agreement (planned/premeditated)

Do not have to be at scene of crime: enough if planned i.e.
getaway car, lookout man, brains of operation
S v Goosen
S v Lungile and Another 1999
S v Dube and Others 2010
S v Molimi and Another 2006

Or, active association (spur of moment)

S v Mgedezi 1989
S v Safatsa and Others 1988
Judge confirmed that causation is NOT a requirement
Decision is criticised but set precedent for common purpose
cases
S v Mmphi 2011

86

Development of, and rationale for, the common purpose rule

Historically
o Originated in English law and introduced to SA in 1886
o Apartheid: Sharpville Six and common-purpose doctrine in S v Safatsa
1988 highlighted the doctrine in the context of the administration of the
criminal justice in SA
o In S v Nzo in 1990, the doctrine was also controversially applied
Common purpose doctrine used in this to hold members of a large
organisation liable for crimes committed by other members with
which the former members did not specifically associate
themselves [just?fair?]
o S v Thebus 2003 (CC)
Affirmed the constitutional validity of the common-purpose rule (in
its active assocation form)
o Reason for the common purpose rule (as set out in S v Thebus)
Crime control!
Difficulty for prosecution to establish, with certainty, whether
conduct of specific participants contributed causally to the crime
CPD alleviates this burden
Only invoked in consequence crimes issue of causation
o Scope?
NOT restricted to homicide
CPD had been applied in treason, public violence, assault, rape and
housebreaking cases

Requirements
Unlawful conduct
o Act of principle offender/s is attributed to the rest
o Unlawful conduct consists of participation in the common purpose
o State prove participation in unlawful conduct
o Not necessary to know who main perpetrator common purpose is as if
everyone did everything
o 2 forms of common purpose liability (NB: differentiate)
Where there is a prior agreement
Accused does not need to be present at scene of crime e.g.
getaway car, if suspect runs away
Tacit (implied by conduct) or express
Active association (no prior agreement)
A prior agreement on a common purpose is not required, it
is sufficient if collaboration began without premeditation and
on the spur of the moment Burchell
Extra requirements set out in case:
o S v Mgedozi 1989
Additional requirements to be satisfied before
active association will result in imputation of
conduct of another to accused:
1 Presence at scene of crime & time crime
took place
2 Aware of crime

87

Intention to make common cause with

actual perpetrator of assault
4 Performing act of association with conduct
of perpetrators manifestation of sharing
of common purpose
5 Requisite fault/intention to kill
Thus, common purpose should consciously
have been shared
Accused must not be merely a passive
spectator (cannot just think about committing)

Scope of liability?
Extended approach
S v Nzo 1990
o Scope of liability is very wide
o Members of a group/organisation held liable by means
of continues membership
o Active association: NO intention to form common
cause with those who were actually perpetrating the
assault and there was no manifestation of a sharing of
a common purpose with the perpetrator by
performing some act of association
o Subscribing to policies of ANC is not a sufficient link to
the appellants
o = Unfair and wrong approach
Limited approach
S v Mzwempi 2011
o Narrow scope of liability should be used
o Court concluded that = wrong to impose wide Nzo
approach

Fault
o Prove fault separately/on own merits cannot impute fault
Dolus directus e.g. Safatsa case main aim and object to kill
Dlamini
Dolus indirectus
Dolus eventualis
Negligence e.g. Goosen
o Possible that participants could have different forms of fault depending
on participation why important to prove fault separately
o S v Molimi and Another 2006
o S v Dube 2010
o Problems
When is the correct moment for asserting fault in common purpose
cases?
Dissociation see below
How can a participant in common purpose be found guilty of
culpable homicide, which is based on negligence?
Each participants fault determined separately
Negligence is sufficient (S v Goosen)

Withdrawal / Dissociation

When is the correct moment for assessing fault in common purpose cases?

88

Critical moment for assessing mens rea of a participant in a common purpose

was when common purpose was formulated
This moment may change and courts are adaptive
NB: for circumstances of the case = pragmatic value judgment
A withdrawal is effective upon timely and unequivocal notification to the coconspirators of the decision to abandon the common unlawful purpose
Factors taken into account
o Clear & unambiguous intent (to withdraw)
o Positive conduct terminating participation (e.g. expressly state or going to
police)
o Voluntary dissociation (e.g. withdrawing when you hear police sirens,
also circumstances that prevent from participating is not dissociation)
o When accused withdraws (earlier = better)
o Type of conduct required depends on the role played by accused in
planning the crime
Greater role (kingpin; more planning) = harder to withdraw have
to do more to show court that withdrew
S v Singo
o Part of initial act threw two stones but then went home
o Death was caused after he went to sleep
o Did he withdraw effectively? Or foresee possibility that crime would
continue?
o Court: he did withdraw
o Criticism
S v Lungile 1999
o Does robbers departure = dissociation?
Court said when there is a prior agreement, something more than
mere withdrawal required there was no effective dissociation in
this case fled because of fear of being caught, rather than
dissociating/withdrawing

Joining-in Cases

Joiner-in = a person who, in the absence of common purpose to kill, but with
the intention to kill, joins in a murderous attack after the victim had been fatally
wounded, but while he or she is still alive and whose conduct does not causally
contribute to the death of the victim
Example: Gang seriously injures someone not dead yet, but wound is fatal at
this stage person joins in, associating himself with common purpose e.g.
spitting on victim but doesnt speed up the process of death then, person
dies
Debate: can a person who joins in be found guilty of the murder of the victim?
o Look at the precise moment when a common purpose arises
o One approach: hold join-in guilty of murder on basis that his or her
conduct, although not causally linked to the death, has ratified the
conduct of the person(s) who inflicted the fatal wound ex post facto
o Another approach: joining-in cases a distinction must be drawn between
participation in a common purpose to kill (before deceased is fatally
wounded) and such participation that begins thereafter but while the
deceased is still alive (followed by AD)

89

Approach now: S v Motaung 1990

Facts
Lady suspected of being an informer
Crowd stoned & burnt her video footage of the event
She wasnt yet dead, but fatally wounded, when X hits her
Legal question
Is X liable under common purpose rule for that ladys death?
Ratio
No prior agreement and he joined in after the fatal wound
was inflicted
Joiner-in only liable for attempted murder UNLESS he did
something which hastens the deceaseds death, then he can
be liable for murder (causal connection is present)
Why? Moment of fatal wound is decisive

Critique of Common Purpose

Arguments for common purpose
Snyman

Arguments against common

purpose
Burchell especially active association

Rationale for the doctrine is crime Active association: S v Thebus 2003

control
Accused said common purpose doctrine
Court rejected thee arguments raised = unconstitutional
in S v Thebus
Contradicts the fundamental rule that
Common purpose does not place an the prosecution must prove the
onus upon the accused
elements of liability beyond reasonable
Does not presume his or her guilt doubt, thus is an infringement of the
does not trench upon presumed presumption of innocence (conduct and
causation is imputed)
innocence
Not arbitrary people that join in can Importance of crime control must be
against
importance
of
be held liable (guilty of join balanced
constitutional
rights
enterprise)
Rights at stake
Strong deterent to group crimes
1. Freedom of association
2. Right to a fair trial
3. Right to equality: Some accused
charged with consequence crimes
but who are not engaged in common
purpose
4. Arbitrary deprivation of freedom?
5. Human dignity? Person not treated
as individual but as part of mob
nameless faceless parts of group

Social need for the doctrine

Burchell
Not a reasonable and justifiable limit on
these rights and there is a less intrusive
means of punishing persons (lesser
crimes) involved in joint criminal
90

activity
(accomplice
liability,
conspiracy, attempt, public violence
etc)
-

Sharpville
Six

conspiracy,
incitement, attempted arson, public
violence
Nzo treason
Thebus public violence or defeat
the administration of justice

Burchell argues that should be in line

with fair labelling as there are other
ways to convict them

ACCOMPLICE
Cases:

S v Williams en n ander 1980 (1) SA 60 (A)

S v Msomi 2010 (2) SACR 173 (KZP)

Definition
o Participant in commission of crime but not perpetrator (does not comply
in all respects with definition of relevant crime), or accessory after the
fact
o Accomplices are held criminally liable on the basis of their own unlawful
conduct and fault (mens rea)
o Accomplice liability is accessory in nature
- S v Williams 1980
Distinguished an accomplice from a perpetrator
Perpetrator must satisfy the requirements of the definition of the
crime, whereas accomplice is not a perpetrator (lacks unlawful
conduct)
Liability of the accomplice is based on his or her own unlawful
conduct or fault
Causal connection (legal or factual) between the accomplices
assistance and the commission of the crime by the perpetrator(s)
required
- Burchell: accomplice could factually further the commission of a crime
but not necessarily legally
- Snyman: does not believe there is such a thing as accomplice
S v Safatsa: woman shouting and the man making a petrol bomb
were held liable as perpetrators under the common purpose
doctrine (and not as accomplices)
Proves that no such thing as accomplice liability
- S v Msomi 2010
Attempted to rape girl in taxi
She ran away B ran after her and took her back to be raped by
another man
B is a accomplice = furthered commission of the crime

Liable as an accomplice if an omission?

91

Example: see somebody committing crime and do nothing to stop or not

report to police liable as accomplice?
NO there is no positive legal duty to act UNLESS there is a legal duty on
you i.e. public authority, special protective relationship (see conduct)

Liable as an accomplice if perpetrator is unaware he is being helped/assisted?

E.g. A mentally ill person has left a window open
Burchell: limited accessories
Snyman: strict accessories

Elements of liability
o Unlawful conduct
In S v Williams, the judge described unlawful conduct as
furthering or assisting the commission of the crime (which can
take various forms)
Intentionally furthers/assists the commission of the crime by
somebody else by facilitating, assisting, giving advice,
ordering or encouraging its commission, or makes it possible
for another to commit it
E.g. somebody that drives the escape car or a person that
provides the means to purchase weapons etc.
S v Williams 1980
2nd accused held the deceased while somebody else stabbed
him
Court said murder
But he definitely assisted in associated himself with the
gang and murder
4 questions/central issued raised with the Williams-case definition
of accomplice:
1. Does further or assist imply causally contribute to the
commission of crime?
Williams YES. But is accused not a perpetrator if
there = causal link?
Solution: distinction between factual and legal
causation
Perpetrators are factually and legally the cause
of death
Accomplices are only linked legally (causal
connection between accomplice conduct and
conduct of perpetrator)
Accomplice is committing a separate crime to
that committed by the perpetrator
But Snyman argues that one cannot be
accomplice to murder, thus he does not provide
a solution
2. Can one further or assist by an omission?
POD: mere omission is not criminal, unless there is a
legal duty to act

92

Thus, failure to prevent criminal activity will not

amount to criminal liability (passive spectators cannot
be penalised)

3. Can a person be an accomplice where he or she has

furthered or assisted the commission of the crime by
another, but without the latters knowledge?
E.g. overhearing a robbery plan without making an
agreement with them you decide to help by
deliberately leaving the door unlocked
An accomplice IS LIABLE of the part she played in the
perpetrators crime and it does not matter that the
perpetrator did not know of the assistance
4. What degree of accessoriness is required?
In Williams case the judge stressed the that
accomplice liability is ACCESSORY in nature
Someone else must have committed the crime
(cannot be an accomplice to his or her own crime)
BUT principal offender neednt be tried and convicted
Degree of accessoriness required: debate - 2
approaches
Limited accessoriness (Burchell)
- There should be have been unlawful
conduct perpetrated by the principle
offender, but not matter if principal
offender lacks criminal capacity or fault
elements (thus could not be convicted) =
accomplices can be convicted regardless
- Considerations of fairness
- Courts tend to follow this approach
Strict accessoriness (Snyman)
- Principal offender must have committed
the unlawful conduct with criminal
capacity and requisite fault element
- Problems with theory
o

Fault / Intention
Intention is required at least dolus eventualis: accused must have
foreseen the possibility that the principal offenders crime was being or
about to be committed and, accepting this risk into the bargain, he
went ahead and furthered or assisted in the commission of the crime
Negligence is NOT sufficient (but is sufficient for co-perpetrator)
otherwise spread ambit of criminal liability too far
E.g. X left a window open by mistake, somebody came in that window.
X liable as an accomplice? No not aim at furthering the commission of
theft

Punishment
Depends on extent to which accused has furthered commission of
crime more or less than perpetrator

93

94

12.2. Participation After Completion of the Crime

12.2.1.

ACCESSORY AFTER THE FACT

Cases:

S v Jonathan 1987 (1) SA 633 (A)

R v Gani 1957 (2) SA 212 (A)

Introduction
o

A person that intervenes after the completion of a crime cannot be said to

further, assist in, or cause the commission of a crime and thus cannot be an
accomplice
BUT could be liable as: assessor after the fact or attempting to defeat the
course or administration of justice

Definition
o

o
o

An accessory after the fact is someone who after the completion of the crime
unlawfully and intentionally associates himself or herself with the commission
of the crime by helping the perpetrator or accomplice to evade justice
No difference between accessory after the fact liability and the crime of
defeating or obstructing the course of justice
Example: allowing robbers to hide in your house to evade arrest, helping a
person to hide a body
BUT if a promise was given prior to commission of crime = accomplice or
perpetrator (depending on facts). Example: I promise to help you hide the body
after you have killed X.
Theft = Continuous crime which means that it remains a crime long after the
initial incident (so no after the fact). It is a crime to be in possession of stolen
goods, thus, liability as accomplice, not an accessory after the fact

Theoretical approaches
o

S v Nkosi (AD) refereed to the two possible definitions of accessory-after-thefact liability, but did not consider it necessary to choose between the two
approaches
There are two broad approaches to the definition of accessory after the fact
liability:
1. Association with commission of crime
Accessory after the fact is somebody who unlawfully and
intentionally assists the perpetrator after the completion of the
crime by associating himself with the commission of the crime
Wider approach broad association
E.g. accepting proceeds that you know came from a robbery
Snyman: too wide may include a person merely approving,
condoning or ratifying the commission of an offence after the event
E.g. someone who writes a letter congratulating robbers

95

2. Defeating/obstructing the course of justice

Someone is only an accessory after the fact if she has some
specific objective/purpose, i.e. helping the perpetrator or
accomplice evade justice by hiding them or helping them escape
Narrower approach is favoured in S v Morgan
The reason for a separate offence of being an accessory after the
fact now falls away, since the offence of defeating (or obstructing)
the course of justice adequately covers the conduct of the alleged
accessory after the fact
Criticism: emphasising that accuseds purpose must be to help the
perpetrator evade justice tends to confuse motive and intention

Elements of liability
o

Unlawful conduct
Depending which approach is adopted, unlawful conduct could be
either:
Associating oneself with the commission of the crime, or
Helping the perpetrator to evade justice
Omission included
Only if there is a legal duty to act positively
Accessory nature of liability
Thus, can only be an accessory if somebody else has
committed the crime or attempted to do so
Person CANNOT be an accessory after the fact to his OWN
crime
Issue: X, Y and Z charged with murdering D. All 3 of the
accused were caught disposing of Ds body. Prosecution
cannot prove which of accused killed D in the absence of
proof of the common purpose BUT can they be found guilty
of being accessories after the fact to Ds murder?
- S v Gani & S v Jonathan, on a similar set of facts,
found that the accuseds CAN be guilty of being
accessories after the fact
- Justification: the accused who had not killed the victim
were accessories and the accused that killed the
victim was liable as an accomplice to their crime
- Misses the point? Williams case accomplice liability
was emphasised
- This decision can only be viewed as a policy-based
exception to the rule liable for defeating the course
of justice
- BUrchell & Snyman argue that should do away with
accessory after the fact and make a crime for
obstructing the course of justice alone.
- Therefore reason for existence of a.a.t.f. liability =
questionable (undermines/bend the legal principles of
accessory after the fact)
Attempted accessory after the fact liability
No objection to such a conviction, although has yet to occur
Fault

96

Intention (dolus eventualis) required

Even where crime committed by perpetrator requires only
negligence, the accessory after the fact must have intention
Must foresee the possibility of unlawful conduct (not necessarily
that specific crime)

97

INCOMPLETE CRIMES
13.1.

Introduction

Consists of preceding forms of conduct directed at the committing a crime

The accused has not completed the commission of a specific crime he or she
is liable for attempt, incitement or conspiracy to commit that offence
(incomplete crimes)
Why should incomplete crimes be punishable?
o Potential harm to society
o Punishment theories (retributive person who cause harm should suffer
proportionate harm)
Deterrence: nip crime in the bud
Prevention: could be very bad person, prevent from doing terrible
things
Rehabilitation
Incomplete crimes are crimes into common law as well as section 18 (1) of the
Riotous Assemblies Act of 1956
Can be punished even as severely as if completed the crime

13.2.

ATTEMPT

Cases:

R v Schoombie 1945 (AD)

S v Laurence 1975

R v Nhlovo 1921

S v Du Plessis 1981 (A)

R v Hlatwayo 1933

R v Davies 1956 (A)

S v W 1976

S v Ndhlovu 1984
Legislation:

Section 18 of the Riotous Assemblies Act 17 of 1956

Two kinds of attempt:

Where the accused did all that he set out to do but failed due to: [R v
Schoombie 1945]
Lack of foresight, skill or the existence of unexpected obstacle or
otherwise (completed attempt)
Prevention by some outside agency (incomplete attempt)
Question asked to differentiate between the two: was there anything more that
this person could have done? Example: shoot and miss; hire hit man but he later
backs out; poison in coffee but throws out.

13.2.1.

Completed Attempt

Requirements (formulated in Schoombie)

1. Accused finally formulated an intention to commit the offence
2. Done all that was in his power to do to secure the commission of the
offence
Certain factors are relevant:
- Whether the accused made up his mind to commit the crime in question

98

The degree of proximity or remoteness which the arrested conduct bore

ro what would have been the final act required for the commission of the
crime
- Considerations of practical common sense
S v Laurence 1975
o Facts
Apartheid laws against contact with banned people (Suppression of
Communism Act)
Lawrence interviewed Robert Sobukwe, a banned person and
Lawrence sent a letter to London for them to publish an article in a
newspaper about Sobukwe
Police intercepted letter
Court = incomplete crime
o Does it = completed attempt?
Court said yes: he set out the following: to interview him, write
letter, to post two letters and article he did everything he set
out to do. Thus, Lawrences role was completed

R v Nhlovo 1921
o Facts
Accused, Nhlovo, wanted to kill Jacob. Ask another person to
poison him.
Obtained poison and told a boy it was medicine and asked him to
put it in Jacobs food
But boy didnt poison Jacob: they figured out Ns plan and went to
the police
o Court said the conduct was not close enough to complete
o Burchell & Snyman: should have been a case of attempted murder
o Note: this case was decided well before the concept of completed
attempt was propounded in Schoombie

S v du Plessis 1981
o Facts
Apartheid laws (Official Secrets Act)
Du Plessis wrote letter to London and wanted to write a book about
his experiences in the army
Asked if they would publish him
Police intercepted the letter
o Court said there was no clear formulation of intent. DuP was tentative
and unclear in his approach (not definitive) - unlike Laurence, DuPs
conduct was not complete still in the early stages

13.2.2.

Uncompleted Attempt

Definition

The accused had NOT done all that he has set out to so because he was
prevented from an outside agency
R v Schoombie 1945
o ... Those [attempts] in which the wrongdoer has not completed all he set
out to do, because the completion of his unlawful acts has been
prevented by the intervention of some outside agency

99

How to determine

Problem: how far must you have gone? Proximity of accuseds conduct to
commission of crime
Use a subjective or objective test?
Possible tests (various attempt theories)
o Subjective test (state of mind)
Focuses on accuseds evil intention / state of mind / moral guilt
Doesnt matter how remote accuseds act is from the completion of
the crime is important what accuseds state of mind was
Is applied at attempt to commit the impossible
Certain context where use a purely subjective test
R v Davies and Another 1956
S v Ndlovu 1984
S v W 1976
o

Objective test (potentially harmful conduct)

Focuses on evil intention / state of mind AND (objectively)
potentially dangerous or harmful conduct
Is applies at uncompleted attempt **
NB Distinction between:
Mere preparation (not punishable) and
True attempt - commencement of the consummation
(punishable)

True attempt:
Preparation not sufficient for liability
Very difficult to draw dividing line between the two
Cannot be formulated ito general principles depends on
facts of case
NB other factors (Burchell & Snyman)
a. Physical proximity to success/object/scene of the crime?
Du plessis: far from commission only wrote letter
Schoombie: very close to completion
b. Do acts, viewed from the outside, bear unequivocal
testimony to a firm resolve to commit the crime?
Undecided = could be in preparation stage
c. Interval of time between when accused was caught and
expected completion of crime?
d. Natural course of events?
e. Accuseds control of the course of events?
f. Highly improbable that accused will change their mind?
NB relevant factors (from S v du Plessis)
- Has accused made up his mind to commit the crime?
- Degree of proximity/remoteness which the accuseds
conduct bore to the final act required for committing the
crime?
- Practical common sense
Conclusion: De Villiers AJ (R v Katz 1959)
A value judgment of a practical nature is to be brought to
bear upon each set of facts as it arises for consideration...
...

100

13.2.3.

Voluntary Withdrawal & Attempt

No punishable attempt if there is change of mind in the preparatory stage

If an accused repents after the committing a completed crime (e.g. gives back
stolen property) this has not effect on criminal liability
Once an act has amounted to legal attempt (a decision), a attempters choice to
discontinue with the commission of the act has no effect on liability but could
mitigate punishment
= Withdrawal takes place after commencement of consummation
o R v Hlatwayo 1933 obiter
Accused attempted to poison somebodys porridge but threw the
poison away only once she had been found out by a fellow
employee
Change of mind was not voluntary
Voluntary vs non-voluntary withdrawal?
Involuntary withdrawal
Issue of voluntary withdrawal is an open question
Snyman: Voluntary withdrawal before the completion of the crime
should be a defence but English writers disagree
Snyman believes that should encourage voluntary
withdrawal at a stage when no harm has yet occurred and
that this is in keeping with traditional theories of punishment
& abandoning intention
Reasons for punishing?
Evil intention?
Political considerations?
o Incentivise withdrawal
Regarding voluntary withdrawal is in keeping with recent
case law on withdrawal from the common purpose
(dissociation from the common purpose)

Fault
o Intention is required (dolus eventialis)
o Attempt to commit a statutory offence which no fault is required need
intention? Yes!
o No such thing as a negligent attempt no attempted culpable homicide

13.2.4.

Attempt to Commit the Impossible

13.2.4.1. Physical/Factual Impossibility

Can an accused be guilty of an attempt to commit a crime, which is physically

incapable of commission?
R v Davies 1956
o The accused was found guilty of attempted abortion even though the
foetus was already dead at the time in question
o Distinction between absolute and relative impossibility is irrelevant
judge rejected it
o The judge also rejected the argument that the accuseds raised that the
court should objectively determine whether accuseds conduct was
dangerous to the common good

101

The purely subjective view that intention alone constitute a criminal

attempt is not part of RSA law thus the accused must have done acts,
but for the impossibility, would have passed the stage of preparation and
reached the commencement of the consummation of the crime
Impossible for accused to commit crime because:
1. Accused doesnt possess personal characteristics/qualities to commit the
crime (impossibility relating to the subject/accused himself)
2. He uses wrong/inadequate means
3. Crime cannot be committed in respect of that particular object
S v W 1976
Attempted rape of a corpse
S v Ndlovu 1984
Attempted murder of a corpse
o In all 3 cases, accuseds conduct is still punishable
o Why?
Subjective approach adopted by the courts looks at accuseds evil
intention it is irrelevant that the conduct is objectively speaking
quite harmless/innocent!
E.g. woman tries to poison her husband with what she thinks
is poison when it is just icing sugar
NB: rule regarding physical impossibility only applies where
accuseds conduct amounts to commencement of the
consummation
o

13.2.4.2. Legal Impossibility or Putative crimes [exception]

There are two qualifications to the Davis rule:

ii)
In statutory crimes, the language of the statute may preclude a
conviction of attempt
iii)
Where it is not legally possible to commit the crime attempted

CANNOT be punished if what the accused was aiming to achieve was not a
crime but accused thought it was a crime R v Davies
= Mistake of law as regards to existence of crime (person thinks it is a crime
when it isnt)
[Opposite to De Blom case she thought it was not a crime, but it was not;
whereas here the person thinks it is a crime, but it is not]
Irrelevant if person has evil state of mind or not
NOT punishable
o WHY?
Principle of legality: if the court was to find such a person guilty, court
would need to criminalise that act (i.e. make a new crime) in order to
make it a crime that a person can be guilty of = against ius acceptum
(would be adding a crime)
Example:
o Adultery is not a crime in RSA thus a couple that believes it is a crime
and attempts to commit adultery will NOT be convicted to attempt
o Suicide is not a crime an attempt to commit suicide is not punishable
o X wants to sleep with his cousin, Y. (According to law in RSA, it is not a
crime to sleep with your cousin). But he thinks so some reason that Y is
his sister.

102

A) He knows that it is a crime to sleep with your sister, but not a crime
to sleep with your cousin. Is X guilty of a crime?
- Mistake wrt FACT mistook his cousin for his sister thus he can
be guilty of incest
B) He believes that sleeping with your cousin is illegal. Is X guilty?
- Mistake wrt LAW mistook the legal principles thus he cannot
be guilty of incest

Crimes impossible to attempt:

o 1. High treason merely attempting to do it is already a crime
o 2. Omissions where unlawful conduct does not include a consequence
no attempt; where consequence crime is involved and an omission can
constitute an attempt
o 3. Cannot have attempted attempt

Liable for attempt where crime is successfully completed

o S 257 of Criminal Procedure Act: conviction of attempt is only possible
where the accused has not completed the crime itself
o Be careful to distinguish where accused has progressed past the attempt
stage to the completion of the crime itself and where accused attempted
to commit the crime but somebody else carried it through
o Burchell: possible to be liable if crime completed, but can be liable for
attempt

13.3. INCITEMENT [incomplete crimes continued]

Cases:

S v Nkosiyana 1966 (A)

R v Zeelie 1952 (A)

R v Milne and Erleigh 1951 (A)

Legislation:

Section 18(2)(b) of the Riotous Assemblies Act 17 of 1956

Introduction
o Crime in terms of:
Common law
S 18(2)(b) Riotous Assemblies Act: Any person who incites,
instigates, commands, or procures any other person to commit any
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
Definition
o Inciter = one who unlawfully makes a communication to another (incitee)
with the intention of influencing that person to commit a crime (must
subjectively believe that the proposed conduct is a crime)
Elements: requirements
o Unlawful conduct

103

Communication with incitee (words or conduct) but it must reach

the mind of the incitee to be a crime
Even if incitee doesnt act, can still be liable for attempted
incitement
E.g. X is deaf and did not hear you ask him whether he wants
to kill Y or not. Crime? Doesnt reach the mind of the incitee
= attempted incitement
Is immaterial whether incite acts upon communication or not BUT
if crime is committed, inciter is guilty as perpetrator or accomplice
E.g. send an email to X saying you want to kill Z. X received
the email but deletes it immediately = reaches his mind =
completed crime = completed incitement
E.g. If incitee agrees crime committed? Possibly liable as
an accomplice
Express or tacit communication
Does it have to take form of persuasion? Not necessarily.
o S v Nkosiyana and Another 1966
Accused incited someone to kill person
Judge: didnt need persuasion, were already
going to do it
An inciter reaches and seeks to influence
another the approach may take various
forms suggestions, proposal, request,
extortion, argument the means employed
are of secondary important
Person must be aware of the communication
Is mutual incitement possible? Yes in certain instances.
R v Zeelie 1952
o Allegedly contravened the Immorality Act: he had
incited a coloured prostitute
o Prostitute: he whistled to her
o Accused: she had used hand signals to signal him
Both parties blamed other, claimed they were
incited by the other
o Court said she had done the inciting, not him

Fault
Intention is required
In respect of influencing the incite to an act which was
criminal
Emphasis on state of mind of inciter, not incitee
Inciter must know/believe/foresee possibility that the
proposed act the he seeks to influence the incite (even if
this is not the case) = subjectively believe
R v Milne & Erleigh 1951
o Incited Percy to make a false entry in accounting
books (contrary to the Company Act)
o He knew that Percy didnt know that the entry was
false.
o Is Percy liable of a crime even though he did not know
that it was a crime to make this entry?

104

Court: no inciting to commit an act, because Erleigh

knew it was not a crime for Percy to
o Can be no incitement of someone who didnt know
o NB: subjective belief of inciter
o E not guilty of incitement but of another crime
instrument?
Incitement to commit the impossible?
o Rule in R v Davies should be applied
Evil state of mind to incite somebody to commit a crime, can be held
liable for attempted incitement
Influenced the incite to commit acts which that believed to be, and
which would have been, crimes but for the factual impossibility
o

13.4. CONSPIRACY
Case:

R v Harris (1927) 48 NLR 330

Legislation:

Section 18(2)(a) of the Riotous Assemblies Act 17 of 1956

Background & origin
o Roman-Dutch law = conspiracy (agreement to commit a crime) was NOT
a crime had to act to be convicted
o Anglo-American law = popular & used
o Conspiracy is a crime ito S 18(2)(a) Riotous Assemblies Act of 1956: any
person who conspires with any other person to aid or procure the
commission of or to commit any offence, whether at common law of
against a statues 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
o SA law = not often use crime of conspiracy - seems to be covered under
prior agreement common purpose doctrine
o But is it Constitutional? Infringing on freedom of association?
Definition
o Conspiracy applies where X entered into an agreement between 2+
persons to commit a crime; to aid the commission or a crime or to
procure the commission of a crime
Elements
o Unlawful conduct
= Actual agreement between parties constitutes conduct
Not sufficient for mere contemplation of future criminal
conduct which does not find outward expression must
advance to a stage of objective expression and the
agreement is that act which amounts to a conspiracy
Not need to agree on the means of carrying out the plan, but
must be negotiating towards agreement
Meeting of the minds = consensus; not pretend to consent
o Harris v Rex 1927
Express (verbal) or tacit (conduct) to amount to conspiracy

105

BUT only reasonable inferred is that conduct amounts to

conspiracy then can be charged

Types of conspiracy (manifestations):

a) Umbrella spoke conspiracy
- One main conspirer
- Not necessary for other individuals to communicate
with one another, but must be aware of existence of
the others
b) Chain conspiracy
- Dont have to be aware of exact identities of fellow
conspirators
- E.g. drug cartel: where A (manufacturer) agrees with B
(supplier) who agrees with C (man selling on street)
etc.
c) Joint conspiracy
- E.g. where A, B and C agree with each other together
= all sat together and agreed to commit crime

Intention (at least dolus eventualis foresee possibility)

Intention to conspire: cannot be coincidental that share
same aim to commit a crime, must have meeting of minds
must be aware that you are conspiring
Intention to commit crime or assist in its commission (must
KNOW it is a crime De Blom)
(Even if your involvement is not a crime by itself)

Fault

Relationship between attempt, conspiracy and incitement

Does attempted conspiracy = incitement? Could be!

Once person received agreement with person want to incite = conspiracy
If crime is committed then members of conspiracy can be liable ito common
purpose doctrine due to prior agreement
Conspirator withdrawal? Not liable for crime but can be liable for crime of
conspiracy
Conspiracy to commit the impossible? Can be liable due to subjective state of
mind (evil) R v Davies 1956 but very unlikely situation (conspiracy is at such an
early stage in commission of the crime)

106