Reading list and essential study materials
for Criminal Law
2017
HOW TO USE THIS WORKBOOK
Welcome to the study of the general principles of criminal law. This workbook is designed to assist
you with your studies.
It is imperative that you supplement what is conveyed to you in lectures by reading more
extensively on the subject. Under each section heading in the workbook, you will find a reading list
for that particular topic. Cases and texts listed as Required Reading are compulsory study material
for both tutorial and examination purposes, regardless of whether or not they are covered in
lectures. Cases and texts listed as Recommended Additional Reading are not compulsory study
material, however you are strongly urged to read at least a fair selection of this material, in order to
broaden and deepen your understanding of the course content. Students who achieve outstanding
results for the course invariably show evidence of having done more than merely the prescribed
minimum amount of reading.
After the reading list for each section, there are questions to enable you to test your knowledge and
understanding of the subject matter. In most cases, there are both short questions and problem
questions. The short questions are designed to test your memory of the relevant legal concepts and
principles. If you are unable to answer them unaided, it probably indicates that you have not spent
sufficient time studying and memorising the relevant subject matter and/or have not paid sufficient
attention to important details.
The problem questions are designed to test your understanding of the relevant legal principles and
your ability to apply them to different sets of facts, as you would be required to do in practice. If
you are unable to answer them unaided, it probably indicates that, whilst you may be able to repeat
the relevant legal principles, you have not really understood them, or grasped their implications.
This indicates that you should repeat your study of the relevant section and ask for assistance if you
are still experiencing difficulties.
1
GENERAL INFORMATION
HOW TO WRITE CASE SUMMARIES:
Part of your preparation for tutorials will consist of making written summaries of the cases you are
required to read. You should write a concise, but adequately detailed summary of each case under
the following headings:
1.
2.
3.
4.
Legally relevant facts;
The legal issue(s) that the court had to decide;
The analysis of the law as set out by the court; and
The decision of the court.
Your summary should show that you have an appreciation of the logical development of the court’s
analysis of the law and the reasons for its decision (the ratio). Summaries should normally be about
1 to 1½ pages in length, or longer in the case of lengthy and complex judgments.
HOW TO ANSWER PROBLEM QUESTIONS:
You should provide a detailed and carefully written answer to the question, logically and
systematically set out in the following order (headings may be used if desired):
1.
2.
3.
4.
Issue/s in dispute;
Relevant law;
Application of the law to the facts; and
Conclusion.
(You do not need to repeat the given facts at the beginning of your answer and no marks will be
awarded for doing so).
This is known as the “IRAC” formula. More detailed guidelines for using IRAC this are provided on
the following page.
Answers for test and examination purposes should be about 1200 words; ie, about 5-6 handwritten
pages in length – about 3 - 3½ pages for issues and relevant law (including cases) and about 2 2½ pages for application and conclusion. 50% of the marks for the question will be for the issues
and relevant law and 50% of the marks will be for your application and conclusion.
Note that problem questions are usually designed to give you the relevant facts in broad outline
only. You will seldom be given all the information that you would like to have. Sometimes additional
facts can be deduced from the given facts, by inferential reasoning. If so, you are required to draw
the necessary inferences. You may not, however, simply make up, or assume the existence of
additional facts. Where your conclusion is necessarily dependent on the existence (or otherwise) of
undisclosed facts, you must consider both alternatives and explain why your conclusion will differ
accordingly.
2
USING ‘IRAC’ : THE STEPS
1.
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
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


2.





IDENTIFYING THE ISSUES
Read and analyse the problem.
Separate the facts of the problem from the question/instruction(s).
Identify the key word(s) in the question/instruction(s); eg, ‘advise’, ‘discuss’, ‘explain’, so that
you understand what you are expected to do.
Diagnose the problem:
 Identify what area(s) of law are involved.
 Identify what issues of fact &/or law are in dispute between the parties.
 Narrow these issues down as much as possible.
 Ignore issues that are not in dispute, or that you have been told to ignore.
List the principal issue(s) in dispute, in the order in which you intend to deal with them.
For present purposes, there is no need to list all the sub-issues.
STATING THE RELEVANT LAW
Set out and explain the legal principles (rules) that will be used to decide the issues in dispute.
Use a logical, methodical structure (eg, follow the normal sequence of enquiry; or proceed from
the general to the specific).
Keep introductory and background material brief (get to the point quickly).
Focus on the principles of law (maxims, rules, definitions, tests, requirements) that will be
used to decide the issues in dispute – explain them fully, citing your case authority as you
proceed.
This will give you your “road map”.
WHAT ARE CASES FOR?
 Cases are part of the relevant law.
 They (1) provide authority for the stated principles and (2) show how these principles have
been interpreted by the courts in the past.
 But they DO NOT speak for themselves! – introduce, connect, explain!
HOW TO DEAL WITH CASES
 No need to cite case authority for trite law.
 Keep the facts of the case brief (one sentence).
 Focus on the court’s interpretation of the facts (if relevant) & what the court said about the
relevant law (the ratio).
 If applicable, say how the case changed/developed the law.
 If discussing a series of cases on a particular point of law, deal with them in chronological
order.
 Cases MUST be integrated with your discussion of the relevant principles – not simply tacked
on at the end.
3
3.




APPLYING THE LAW
Show how the principles set out above (the rules, tests, definitions, etc, as informed by the
relevant cases) apply to the facts of your problem.
Use a logical, methodical order of enquiry (follow your “road map”).
No need to restate the law – just apply it.
However, it may help to translate general rules, tests, etc, into terms that are specific to the
facts of the problem (this will give you the sub-issues) – see example below:
TRANSLATING THE GENERAL TEST/ENQUIRY INTO SUB-ISSUES
Question: Dr Johnson, a general practitioner, prescribes penicillin tablets for Karl, a new patient.
Unbeknown to Dr Johnson, Karl is highly allergic to penicillin. Karl suffers a violent reaction after
taking the tablets and dies. Is Dr Johnson negligent in respect of Karl’s death?
The test for negligence (this would appear under Relevant Law)
1. Would a reasonable person in the same circumstances as the accused have foreseen the
possibility of causing the harm? And, if so:2. Would a reasonable person in the same circumstances as the accused have taken steps to
prevent that possibility from materialising? And, if so:3. Did the accused fail to take the steps that s/he should reasonably have taken to prevent that
possibility from materialising? (Kruger v Coetzee)
The sub-issues (this would be the start of the Application section)
1. Would a reasonable person in the same physical circumstances as Dr Johnson, and with the
knowledge, skill and expertise of a general medical practitioner, have foreseen the possibility that
the prescribed penicillin could cause Karl to suffer a fatal reaction?
2. If so, would that person have taken steps to prevent Karl from suffering such a reaction?
3. If so, what were these steps?
4. Did Dr Johnson take these steps or not?




4.




Now decide the answer to each sub-issue in turn, showing your reasoning (do not simply
assert).
Don’t dodge the difficult issue(s)!
Once you have decided the answer to each sub-issue, your application is complete.
Do not apply cases in isolation.
CONCLUSION
Put all your findings together and state your final conclusion.
Can be brief - no need to repeat reasoning already explained.
MUST flow logically from your findings in section (3) – even if you don’t like the outcome!
MUST address the issues identified in section (1).
4
ASSESSMENT CRITERIA
The following explains the assessment criteria used in marking tests, assignments and examinations:
CATEGORIES
0%-19%:
20%-39%:
40%-49%:
50%-59%:
60%-69%:
70%-74%:
75%-84%:
85%-94%
95%- 100%
Fail
Fail
Fail
Third Class Pass
Lower Second Class Pass
Upper Second Class Pass
First Class Pass
First Class Pass
First Class Pass
Poor Outright Fail
Outright Fail
Borderline Fail
Bare pass – adequate
Fairly good – competent
Good
Very Good
Excellent
Outstanding
EXPLANATION OF CATEGORIES
0%-19%:
Poor Outright Fail
Does not meet minimum learning outcomes and displays many of the following deficiencies:
Issue(s) is/are incorrectly identified (problem is misdiagnosed);
Basic legal principles are omitted or incorrect;
Case law analyses are omitted, irrelevant, or seriously defective;
Application of law to given facts is omitted or seriously defective;
Language skills are seriously sub-standard.
20%-39%: Outright Fail
Does not meet minimum learning outcomes and displays one or more of the following deficiencies:
Issue(s) is/are incorrectly identified (problem is misdiagnosed);
Basic legal principles are omitted or contain serious errors;
Case law analyses are omitted, irrelevant, or seriously defective;
Application of law to given facts is omitted or seriously defective;
Language skills are seriously sub-standard.
40%-49%: Borderline Fail
Does not meet minimum learning outcomes and displays one or more of the following deficiencies:
Issue(s) are correctly identified, but relevant legal principles are insufficiently addressed and/or or the
student's understanding of them is flawed;
Coverage of case law is too scanty, largely irrelevant, or displays fundamental conceptual or other errors;
Basic legal principles are not applied logically to the given facts;
Language skills are sub-standard.
50%-59%: Bare Pass – “Adequate”
Meets minimum learning outcomes by a small but clear margin and displays one or more of the following
qualities:
Basic legal principles are correctly identified and stated in a manner that is fundamentally accurate,
though detail may be lacking;
Relevant case law is addressed; the analysis of the cases is fundamentally accurate, though the analyses
may be lacking in depth and/or insight;
The relevant legal principles are applied to the given facts in a logical manner, without any major or
fundamental errors, although the correct conclusion may not be reached;
Language skills are of an acceptable level, though there may be some errors of grammar and syntax.
5
60%-69%: Lower Second – “Fairly Good/Competent”
Meets minimum learning outcomes, as well as indicating some deeper understanding of the material
examined.
Overall, of a quality superior to that for the 50-59% range, but falls short of meriting an upper second
class pass.
Generally, a sound, competent answer that is more than merely a bare pass.
70%-74%: Upper Second – “Good”
Indicates a sound knowledge and understanding of the material examined, together with the required
skills, and:
Most (but not necessarily all) of the relevant legal issues are correctly identified and articulated;
The student shows a sound knowledge and understanding of the relevant legal principles, going beyond
merely basic principles;
Case law is addressed in a competent manner; relevant cases are discussed and analysed correctly and in
reasonable depth and detail; concepts such as the ratio decidendi and obiter dicta and the doctrine of
stare decisis are understood and correctly applied; the student is able to distinguish between apparently
like cases.
The relevant legal principles are applied to the given facts in a manner indicating sound legal reasoning;
the conclusion is properly motivated, even if not entirely correct.
The student shows a good knowledge of, and a sound ability to apply the technical vocabulary of the
discipline, coupled with clear and accurate expression.
75%-84%: First Class Pass – “Very Good”
Indicates a comprehensive knowledge and understanding of the material examined, together with the
required skills, at a level significantly above that of an upper second class pass, and:
All (or substantially all) of the relevant legal issues are correctly identified and articulated; the student
shows insight into the issues and omits irrelevant material;
The student shows a comprehensive knowledge and understanding of the relevant legal principles, which
are analysed in depth and detail;
Case law is addressed in a competent manner; relevant cases are discussed and (where applicable)
compared in depth and detail; concepts such as the ratio decidendi and obiter dicta and the doctrine of
stare decisis are understood and correctly applied; the student is able to distinguish between apparently
like cases.
The relevant legal principles are applied to the given facts in a manner indicating sound legal reasoning;
the conclusion is correct and properly motivated; where appropriate, alternative conclusions are explored.
The student shows a high level of proficiency in the technical vocabulary of the discipline, coupled with
clear and accurate expression.
85%-94%: First Class Pass – "Excellent"
Indicates a comprehensive overall understanding as well as depth of insight into the nature of the
material examined, coupled with superior analytical skills and, where applicable, critical ability. A student
in this range will not only be fully familiar with all prescribed reading material, but will normally also show
clear evidence of having consulted a wide range of recommended additional material.
Work of a quality that is significantly above that of an "ordinary” first class pass.
95%-100%: First Class Pass – "Outstanding"
Indicates a broad and comprehensive depth of understanding of the nature of the material examined.
Generally, work of an exceptional quality, significantly higher than that in the 85-94% bracket, above.
Marks in this bracket would usually be obtained only by the top 5% of students across the faculty, and a
mark of this standard would not necessarily be achieved by the top student of a given class.
6
PART 1: UNLAWFUL CONDUCT (ACTUS REUS)
1.1
VOLUNTARY CONDUCT
REQUIRED READING
Kemp: Chapter 3
R v Dhlamini 1955 (1) SA 120 (T)
R v Mkhize 1959 (2) SA 260 (N)
S v Viljoen 1992 (1) SACR 601 (T)
S v Stellmacher 1983 (2) SA 181 (SWA)
S v Evans 1985 (2) SA 865 (Zs)
S v Arnold 1985 (3) SA 256 (C)
S v Wiid 1990 (1) SACR 560 (A)
S v Eadie 2002 (3) SA 719 (SCA) – paras 42 in fine
R v Victor 1943 TPD 77
R v Schoonwinkel 1953 (3) SA 136 (C)
Wessels v Hall & Pickles (Coastal) (Pty) Ltd 1985 (4) SA 153 (C)
S v Van Rensburg 1987 (3) SA 35 (T)
RECOMMENDED ADDITONAL READING
Blackbeard ‘Epilepsy and Criminal Liability’ (1996) 9 SACJ 191
R v Nhete 1941 SR 1
R v Ngang 1960 (3) SA 363 (T)
S v Laubscher 1988 (1) SA 163 (A)
S v Potgieter 1994 (1) SACR 61 (A)
S v Henry 1999 (1) SACR 13 (SCA)
SHORT QUESTIONS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Define ‘voluntary conduct’.
In what circumstances might a person’s conduct be considered involuntary?
What is the general rule in law relating to involuntary conduct?
If a person commits an involuntary act or omission, in what circumstances might they be
nevertheless be held criminally liable for it?
What are the three requirements for liability in such a case?
What is meant by automatism?
What is the difference between sane and insane automatism and why is this difference
important?
What is the difference between psychogenic amnesia and psychogenic automatism?
What is meant by temporary non-pathological criminal incapacity?
What, if any, is the difference between sane automatism and temporary non-pathological
criminal incapacity?
7
PROBLEM QUESTIONS
1. Thandiwe is a 16-year-old mother, living in a remote and undeveloped rural area of northern
KwaZulu-Natal. She attended the local secondary school up to grade 8 (former standard 6), but
had to leave when she fell pregnant with her first child, who is now six weeks old. Since the
baby’s birth, it has been Thandiwe’s practice to take it to sleep with her, so that she can breastfeed it when it wakes in the night, without having to leave her bed. This is a common practice in
the community in which Thandiwe lives. One night, Thandiwe is unusually restless. She rolls
onto the baby in her sleep and suffocates it to death. Is Thandiwe guilty of culpable homicide?
2. Yasmin has done a hard day’s work and has not eaten all day. Feeling weak from hunger, she
drives to the shop to buy something for her supper. On her way, she has a black-out. Her car
swerves and crashes into an oncoming car and she is charged with negligent driving. Yasmin has
been told that she suffers from hypoglycaemia and that she should eat regular meals to avoid
blacking out, but she has not been expressly warned not to drive with a low blood-sugar level.
Although she has had black-outs before, this is the first time she has had one whilst driving. Is
Yasmin guilty of negligent driving?
3. Kelvin is a guard at a railway crossing. One day, whilst on duty, he has an epileptic fit and fails
to change the train signals. As a result, there is a serious train accident and a number of
passengers are killed. Kelvin is charged with culpable homicide. Kelvin has had epileptic fits in
the past, and has been prescribed medication for his condition. He has found that, as long as he
takes his medicine, he does not have any fits. On the day in question, however, he forgot to
take his medicine before leaving for work and he does not keep a supply at work. Is he guilty of
culpable homicide?
8
1.2
FORMS OF UNLAWFUL CONDUCT: UNLAWFUL ACTS AND OMISSIONS
REQUIRED READING
Kemp: Chapter 4
Minister van Polisie v Ewels 1975 (3) SA 590 (A)
S v Russell 1967 (3) SA 739 (N)
S v Fernandez 1966 (2) SA 259 (A)
S v B and Another 1994 (2) SACR 237 (E)
R v Chenjere 1960 (1) SA 473 (FC)
S v Gaba 1981 (3) SA 745 (O)
S v Barnes 1990 (2) SACR 485 (N)
S v Williams 1998 (2) SACR 191 (SCA)
S v Van As 1967 (4) SA 594 (A)
Min of Police v Skosana 1977 (1) SA 31 (A)
S v Van Heerden 2010 (1) SACR 529 (E)
RECOMMENDED ADDITONAL READING
Kemp ‘The Duty to Rescue’ (1985) 18 CILSA 163-186
Milton ‘S v A ... Police Brutality, Omissions...’ (1991) 3 SACJ 380
Van Dokkum ‘The Duty to Report’ (1995) 8 SACJ 42
S v A 1993 (1) SACR 600 (A)
Mtati v Minister of Justice 1958 (1) SA 221 (A)
Moses v Min of Safety and Security 2000 (3) SA 106 (C)
Van Eeden v Min of Safety and Security 2003 (1) SA 398 (SCA)
R v Mallaley C/C/7/2001 (Canadian case)
R v Stone & Dobinson [1983] QBD 450 (UK).
SHORT QUESTIONS
1. What are the four principal forms of unlawful conduct?
2. What, according to S v Ewels, is the general rule in our law relating to criminal liability for a
failure to protect or rescue another person from harm?
3. What name is given to this rule and why does it exist?
4. When, according to the same case, will the above general rule not apply?
5. In what circumstances has our criminal law traditionally recognised that a person is under a
legal duty to take positive steps to protect or rescue another person from harm? (refer to case
authority)
6. Why would a criminal court be reluctant to extend the established categories of liability?
9
PROBLEM QUESTIONS
Assess the accused’s criminal liability in the following cases:
1. Jud is a qualified and experienced lifesaver, employed at the Rachael Findlayson swimming
baths in Durban. One Sunday, while he is off duty and relaxing at Westbrook Beach with his
family, someone calls him to assist in the rescue of a person who is drowning in the surf. Jud
refuses and the stricken person drowns. The deceased’s family reports the matter to the police
and Jud is charged with culpable homicide.
2. Angela, who has a diploma in child-care, is employed by Mr and Mrs Kunene to look after their
seven-month-old baby, Sipho. One day, while Mr and Mrs Kunene are at work, Sipho develops
an extremely high fever. Angela picks Sipho up and tries to comfort him, but she does not do
anything further. Sipho eventually goes into convulsions and dies a short while later. A post
mortem examination reveals that Sipho died of encephalitis. The medical expert’s opinion is that
Sipho would almost certainly not have died if medical treatment had been obtained immediately.
Angela is charged with culpable homicide.
3. Mr Dlamini is at home with his family one night, when he begins to have a heart attack. Mrs
Dlamini sends their son, George, to fetch a certain Dr Radebe, who lives a few streets away.
None of the Dlamini family has ever met Dr Radebe, but Mrs Dlamini has heard that he is a
medical doctor, working at King Edward VIII hospital. George runs to Dr Radebe’s house and
finds the doctor asleep in bed after a hard day at work. Dr Radebe wakes up, but refuses to
accompany George. Instead he telephones for an ambulance. The ambulance takes more than
an hour to arrive, however, by which time Mr Dlamini is already dead. Expert medical opinion is
that, if Mr Dlamini had received proper medical attention immediately, his heart attack would not
have been fatal. Dr Radebe is charged with culpable homicide.
4. Marcia is a teacher, employed at a boy’s school in Durban. One lunch time, whilst she is on duty
in the playground, a fight breaks out amongst a group of schoolboys. Noticing this, Marcia runs
to the scene and finds one of the boys, Shane, lying on the ground, bleeding profusely. He has
evidently been stabbed in the chest by one of the other boys. Marcia instructs a prefect to run
and phone for an ambulance, whilst she waits with Shane. Unfortunately, the ambulance takes
nearly an hour to arrive and, by that time, Shane has bled to death. Shane’s parents take the
view that Marcia could have saved their son’s life if she had put him into her own (private) car,
which was at the school, and had driven him to hospital immediately. They lay a charge of
culpable homicide against her.
10
1.3
FORMS OF UNLAWFUL CONDUCT: UNLAWFUL STATES OF AFFAIRS
(No tutorial)
REQUIRED READING
Kemp: Chapter 5
S v Achterdam 1911 EDL 366
S v Brick 1973 (2) SA 571 (A)
S v Hanekom 1979 (2) SA 1130 (C)
S v Cleminshaw 1981 (3) SA 685 (C)
S v Collet 1991 (2) SA 854 (A)
S v Cameron 2005 (2) SACR 179 (SCA)
RECOMMENDED ADDITONAL READING
Whiting ‘The Unwilling Possessor of Pornography’ (1971) 88 SALJ 296
SHORT QUESTIONS
1. What is meant by a ‘state of affairs’ crime? Give two examples.
2. What forms may the actus reus take in such cases?
3. What are the two essential elements of possession for purposes of criminal liability?
4. In what way does the concept of possession in criminal law differ from the same concept in civil
law?
5. Would it make any difference to an accused’s liability for possession of contraband if s/he:


Had forgotten that the item was in his/her possession?
Was keeping the item for someone else?
Was keeping the item in order to hand it over to the police?
11
PROBLEM QUESTIONS
1. Krish and Ryan share a room in a student commune. One day, while Krish is tidying his
cupboard, he finds a small plastic bag of dagga in one of the drawers. Krish suspects that it was
put there by Ryan, who occasionally smokes dagga. Krish decides that, when he next sees Ryan,
he will ask him if the dagga belongs to him and, if so, he will return it to him. Krish puts the
dagga back in his drawer, but then forgets all about it, because he is busy studying for an
important test. Two days later the police raid the commune. They find the dagga in Krish’s
cupboard and arrest him for its unlawful possession. Was Krish in unlawful possession of the
dagga?
2. Tracy goes to a club one evening with her friend, Pat. Pat hands Tracy some pills and asks her to
keep them in her handbag. Later, whilst Tracy is dancing, it dawns on her that the pills might be
Ecstasy tablets. She looks for Pat to return the pills but cannot find her in the crowd. Tracy then
decides to throw the pills away, but before she can do so, she meets up with Jan, whom she has
secretly fancied for some time. Jan gets talking to Tracy and she is so enthralled that she forgets
all about the pills. An hour later the police raid the club and find the pills in Tracy’s handbag. They
are identified as Ecstasy tablets and Tracy is charged with the unlawful possession of these drugs.
Was she in unlawful possession of the tablets?
12
1.4
FORMS OF UNLAWFUL CONDUCT: CAUSING A PROHIBITED CONSEQUENCE
REQUIRED READING
Kemp: Chapter 6
S v Van As 1967 (4) SA 594 (A)
M of Police v Skosana 1977 (1) SA 31 (A)
S v Van Heerden 2010 (1) SACR 529 (E)
S v Mbambo 1965 (2) SA 845 (A)
S v Daniels 1983 (3) SA 275 (A)
S v Lungile 1999 (2) SACR 597 (SCA)
R v Makali 1950 (1) SA 340 (N)
S v Williams 1986 (4) SA 1188 (A)
S v Mokgethi 1990 (1) SA 32 (A)
S v Counter 2000 (2) SACR 241 (T)
S v Tembani [2006] SCA 151 (RSA)
Ex Parte Min of J in re S v Grotjohn 1970 (2) SA 355 (A)
RECOMMENDED ADDITIONAL READING
Matzukis ‘Causation and the Criminal Law’ (1985) SACJ 74-79.
Zimmerman ‘Self-determination, paternalism or human care? Suicide and criminal
responsibility in South African and German law’ (1979) J S Afr L 183.
Boister ‘Causation at the death - Clarke v Hurst’ (1993) 56 THRHR 516-522.
McQuoid-Mason ‘Pacemakers and Living Wills’ (2005) 18 SACC 24-40.
S v De Bruyn 1953 (4) SA 206 (SWA)
S v John 1969 (2) SA 560 (RAD)
S v Gordon 1962 (4) SA 727 (N)
S v Hibbert 1979 (4) SA 717 (D).
RAF v Russell 2001 (2) SA 34 (SCA)
SHORT QUESTIONS
1. What is the test for factual causation in our law? (Latin and English terms).
2. How is this test applied:
(a) in the case of positive conduct on the part of the accused?
(b) in the case of an omission on the part of the accused?
3. Why is it necessary to test for legal causation in addition to factual causation?
4. What is the most commonly-used test for legal causation?
5. What is a novus actus interveniens? What role does it play in the causation enquiry?
13
6. List and explain the essential requirements that must be met for an intervening act or event to
rank as a novus actus interveniens.
7. In what circumstances may a person be held criminally liable for another person’s suicide? (refer
to case authority)
8. What is the meaning and significance of the maxim ‘you take your victim as you find him’? (refer
to case authority)
9. When will the victim’s failure to seek medical treatment or follow medical advice break the chain
of causation? (refer to case authority)
10. When will medical negligence break the chain of causation? (refer to case authority)
11. When might the intervening criminal act of a third person not exonerate the accused from
liability? (refer to case authority)
PROBLEM QUESTIONS
1. Arnie has a fight with his wife, Brenda, in the course of which he pushes her against a wall,
causing her to bump her head. Although the bump was not very hard, Brenda soon starts
complaining of headache and dizziness. To Arnie’s surprise, Brenda suddenly collapses and dies
a short while later. A post-mortem examination reveals that Brenda had been suffering from a
cerebral aneurism (a balloon-like deformity of one of the major blood vessels in the brain). This
had burst when she bumped her head against the wall, resulting in a massive brain
haemorrhage and causing her death. Did Arnie cause Brenda’s death?
2. Krish stabs Suraya in the abdomen and Suraya is rushed to hospital. At the hospital:
(b)
Suraya is told that she has lost so much blood that she must have a blood transfusion, or
she will surely die. Suraya refuses the blood transfusion because she is a Jehovah’s
Witness and her religion prohibits her from receiving blood and blood products. In due
course, Suraya dies from loss of blood. Did Krish cause Suraya’s death?
(c)
Suraya undergoes emergency surgery. The doctors believe that she has a good chance
of recovery, but she dies instead. A post-mortem examination reveals that Suraya’s
intestines had been perforated (punctured) in four places – three of these perforations
had been repaired by surgery, but the fourth (a very small one) had evidently been
overlooked by the surgeons. Suraya died of resulting peritonitis. Accepting that the
surgeons may have been negligent, did Krish cause Suraya’s death?
3. Dan and Eric challenge each other to a game of Russian roulette with Dan’s revolver. Dan inserts
a bullet in one of the revolver’s chambers, spins the barrel, puts the gun to his own head and
pulls the trigger. The gun does not fire. It is then Eric’s turn. Eric takes the revolver, spins the
barrel, puts the gun to his head and pulls the trigger. The gun goes off and shoots Eric in the
head. Eric dies a short while later. Dan is charged with Eric’s murder. Did Dan cause Eric’s
death?
14
4. Koos shoots Hennie in the head, intending to kill him. By a miracle, Hennie survives the incident.
The surgeons are able to remove the bullet from his brain and repair most of the damage.
Hennie recovers to the point where he is able to go home, but finds that he now suffers from
lack of concentration, mood swings, headaches and recurrent severe depression, which he never
experienced before. He consults a psychiatrist, who refers him to a neurologist, who informs him
that this is the result of the shooting, which has left him with minor, but permanent brain
damage. He is given medication for his depression, but stops taking it after a while, because,
although it helps his depression, it also makes him impotent. Six months after the shooting, in a
state of deep depression, Hennie commits suicide by hanging himself. Did Koos cause Hennie’s
death?
5. Bob and Carl have a fight one night, in the course of which Bob stabs Carl in the neck with a
pen-knife. The wound is not very deep, but it penetrates a vein and causes considerable
bleeding. Bob is immediately sorry for what he has done and applies pressure to the wound,
causing a blood clot to form inside the vein. This stops the bleeding. Bob also rushes Carl to
hospital, where the wound is stitched. Although Carl’s condition is stable, and the doctors at the
hospital consider that he will probably make a full recovery in the ordinary course of events,
they decide to perform an operation to explore the wound, because experience has shown that
fatal complications sometimes arise from this particular type of injury. The exploratory surgery
dislodges the blood clot, causing Carl to suffer a massive haemorrhage on the operating table.
This, in turn, leads to heart failure, brain damage and death. Did Bob cause Carl’s death?
6. Bill is a police constable, stationed at Mayville police station, at a time when the Mayville police
are anxious to trace a particularly violent and ruthless criminal, who goes by the name of
‘Phatcat’. One day, the police detectives receive a tip-off regarding Phatcat’s whereabouts from
‘Bigmouth’, a paid informer. Acting on this information, they arrest a person whom they suspect
to be Phatcat. The suspect, however, denies that he is Phatcat, or that he knows anything about
such a person. Whilst the detectives are questioning the suspect, Bill walks into the interview
room, and the detectives ask Bill whether he knows the suspect. Bill just shrugs and walks out.
Eventually the detectives have no option but to release the suspect for lack of evidence. That
night, Bigmouth is murdered. In the course of the ensuing murder investigation, it emerges that
the suspect was indeed Phatcat and that it was he who killed Bigmouth for informing on him. It
also emerges that, throughout the aforegoing events, Bill knew very well who Phatcat was, but
chose to keep his knowledge to himself. The police authorities are understandably furious when
they discover this. They are not satisfied with merely charging Bill with defeating the
administration of justice, but they also want to charge him with culpable homicide in respect of
Bigmouth’s death. What are their prospects of success if they do the latter? [ Note that this
question must be answered both with reference to the principles of omissions liability and with
reference to the principles of causation.]
15
1.5
JUSTIFICATION: PRIVATE DEFENCE OF PERSON AND PROPERTY
REQUIRED READING
Kemp: Chapter 7
R v Zikalala 1953 (2) SA 568 (A)
R v Patel 1959 (3) SA 121 (A)
S v Ntuli 1975 (1) SA 429 (A)
S v Steyn 2010 (1) SACR 411 (SCA)
Ex Parte Min Van J: In re S v Van Wyk 1967 (1) SA 488 (A)
S v Mogohlwane 1982 (2) SA 587 (T)
S v De Oliveira 1993 (2) SACR 59 (A)
S v Manona 2001 SACR 426 (Tk)
S v Engelbrecht 2005 (2) SACR 41 (W)
RECOMMENDED ADDITIONAL READING:
Walker ‘Determining reasonable force in cases of private defence…’ (2012) 25 SACJ 84
Ally & Viljoen ‘Homicide in defence of property in an age of constitutionalism’ (2003) 16
SACJ 121
SHORT QUESTIONS
1. What are the requirements for private defence of person? (Give the requirements for the
attack/threat, as well as the requirements for the defender’s response.)\
2. What are the requirements for private defence of property? (Give the requirements for the
attack/threat, as well as the requirements for the defender’s response.)
3. In what way do the requirements for private defence of person differ from the requirements for
private defence of property?
4. Are the above requirements judged objectively or subjectively? What does this mean?
5. What is the legal position where the defender uses excessive force in order to ward off an actual
attack or threat?
6. Is one still justified in using lethal force in defence of property?
7. What is meant by putative private defence? How does it differ from private defence (proper)?
What effect will it have on criminal liability?
16
PROBLEM QUESTIONS
1. John and Mary, an elderly couple, are walking home late one night along a deserted road, when
Alan approaches them, produces a knife and demands John’s money. Whilst John is handing
over his wallet, Mary reaches into her handbag, pulls out a gun and shoots Alan in the heart.
Alan dies instantly. Mary is charged with murder. What defence would you advise her to raise in
the circumstances? What additional evidence would you look for in order to assess her prospects
of succeeding in this defence?
2. Jake has to park his car in the street at night and he is getting heartily tired of having it broken
into. He complains bitterly to the police about the state of crime in his area, but to no avail.
After Jake has replaced his car radio for the fourth time, he decides to take drastic action. He
takes a half-full bottle of brandy, adds some highly toxic ant poison to the contents and leaves it
in his car as a trap for would-be thieves. Three weeks later, Alvin breaks into Jake’s car to steal
the radio, finds the bottle of poisoned brandy, drinks some, and dies as a result. Jake is charged
with murder, but claims that he was acting in private defence of his property. Will Jake succeed
in this defence?
3. Bongi’s husband, Musa, goes away on business, leaving Bongi home alone. One night, Bongi is
asleep in the upstairs bedroom, when she is awakened by the sound of someone moving around
downstairs in the living room. She is terrified, because there have been a number of burglaries
in the area lately. She cannot telephone the police, because the telephone is downstairs and she
cannot use it without alerting the intruder. Eventually, Bongi summons up her courage and takes
Musa’s pistol out of its hiding place in the bedroom. She makes sure that it is loaded and creeps
downstairs with the gun. There are no lights on anywhere and the whole house is in darkness.
Just as Bongi reaches the bottom of the stairs, a shadowy figure looms up right in front of her.
Without hesitation, she raises the gun and fires three shots at the figure. It collapses to the floor
and dies. When Bongi turns on the lights, she discovers to her horror that the person she has
killed is none other than Musa, who had returned unexpectedly and who was creeping around in
the dark so as not to waken her. Bongi is charged with Musa’s murder, but claims that she was
merely defending herself. Consider whether, on the given facts, this defence will be successful.
If not, is there any other defence that you would advise Bongi to raise instead?
17
1.6
JUSTIFICATION: NECESSITY AND IMPOSSIBILITY
REQUIRED READING
Kemp: Chapter 8
R v Canestra 1951 (2) SA 317 (A)
S v Bradbury 1967 (1) SA 387 (A)
S v Goliath 1972 (3) SA 1 (A)
S v Bailey 1982 (3) SA 772 (A)
S v Lungile 1999 (2) SACR 597 (SCA)
S v Mandela 2001 (1) SACR 156 (C)
S v Mafu 1966 (2) SA 240 (E)
S v Leeuw 1975 (1) SA 439 (O)
S v Moeng 1977 (3) SA 986 (O)
RECOMMENDED ADDITIONAL READING
Burchell ‘Killing Under Compulsion’ (1988) 1 SACJ 18
SHORT QUESTIONS
1. What are the requirements for the defence of necessity? (Give the requirements for the
threat/danger, as well as the requirements for the accused’s response)
2. What are the requirements for the defence of impossibility?
3. What is the principal difference between the two defences?
4. What requirement do they have in common? How important is this requirement in the case of
the defence of necessity?
5. In what circumstances might one raise the defence of necessity to justify the killing of an
innocent person?
6. Are the above requirements judged objectively or subjectively? What does this mean?
18
PROBLEM QUESTIONS
1. Alta, a bank clerk, has a young son, Brendan, who suffers very badly from asthma:
1.1
One day, while Alta is out shopping with Brendan, he begins to have a severe asthma attack.
Alta realizes that she has left Brendan’s asthma pump (inhaler) at home. She rushes into a
nearby pharmacy, grabs an asthma pump from a shelf and runs out of the pharmacy without
paying, so that she can administer the treatment immediately to Brendan. In so doing, she
saves his life. Alta is subsequently charged with the theft of the asthma pump.
1.2
As time passes, Brendan’s condition worsens and treatment by local doctors fails to produce
any improvement. Alta hears of a Swiss clinic that specializes in the treatment of asthma and
decides to take Brendan there for treatment, but her medical aid is not prepared to cover the
associated costs. Alta then embezzles money from her employer in order to pay for Brendan’s
medical treatment. She is subsequently discovered and charged with fraud.
Would Alta be able to rely on the defence of necessity in either of the above cases?
2. Razia walks into her bedroom one day, to find her 3-year-old son, Damon, holding an open
bottle of her sleeping pills. Razia asks Damon if he has swallowed any pills, but all he says is,
‘Sweeties!’ In a panic, Razia puts Damon into her car and rushes him to hospital, where his
stomach is pumped out. The doctors find no trace of any pills in Damon’s stomach contents and,
greatly relieved, Razia takes him home. In due course, she receives a summons for exceeding
the speed limit while driving to the hospital. Razia raises the defence of necessity. Will this
defence succeed? If not, is there a better defence that she could raise?
3. Themba is driving to town one day in his car, when he is the victim of a smash-and-grab theft.
The thief smashes the front passenger window and makes off with Themba’s wallet, which was
lying on the front passenger seat. The wallet contains Themba’s money, credit cards and driver’s
licence. Shocked and stunned, Themba decides to return home. On the way, he is stopped and
questioned by a traffic officer. The traffic officer asks Themba to produce his driver’s licence,
which, of course, is no longer in his possession. Themba is subsequently charged with
contravening section 12(b) of the National Road Traffic Act, 1996. Section 12 of the said Act
reads as follows:-
‘No person shall drive a vehicle on a public road (a) except under the authority ….of a licence issued to him or her…; and
(b) unless he or she keeps such licence … with him or her in the vehicle.’
Themba raises the defence of impossibility. Will this defence succeed? If not, is there a better
defence that he could raise?
19
1.7
JUSTIFICATION: CONSENT
REQUIRED READING
Kemp: Chapter 12
S v Hartmann 1975 (3) SA 532 (C)
R v Brown [1993] 2 WLR 556 (HL)
R v Z 1960 (1) SA 739 (A)
R v Williams 1931 (1) PH H 38 (E)
R v C 1952 (4) SA 117 (O)
S v Handcock 1925 OPD 147
R v Njikelana 1925 EDL 204
R v Sikunyana 1961 (3) SA 549 (E)
S v Collet 1978 (3) SA 206 (RA)
R v M 1953 (4) SA 393 (A)
RECOMMENDED ADDITIONAL READING
S v J 1989 (1) SA 525 (A)
R v Kaitamaki 1980 NZLR 60; [1985] AC 147 (HL)
R v Cuerrier [1998] 2 SCR 371
McQuoid-Mason ‘Pacemakers and Living Wills’ (2005) 18 SACC 24-40
SHORT QUESTIONS
1. What is the difference between consent and agreement?
2. What is the difference between express consent and tacit consent?
3. What is the difference between real consent and putative consent?
4. What is meant by proxy consent?
5. What are the five situations in which consent will be a valid defence?
6. What are the three requirements for valid consent?
7. In what circumstances will consent be vitiated by fraud or deception?
8. Can consent, once given, be withdrawn without the agreement of the other person?
20
PROBLEM QUESTION
Krish offers ‘Candy’, a 20-year-old sex-worker, R800-00 to have ‘kinky’ (deviant) sex with him. Krish
explains that his idea of kinky sex is to tie Candy to the bed and lash her with his leather belt whilst
calling her insulting names, then to have sex with her while she is tied to the bed. Candy agrees to
this, however the lashing turns out to be far more severe than she expected. In fact, she is so badly
bruised that she is unable to work for the next two weeks. She tries to call a halt to the proceedings,
but her cries and protests only inflame Krish, who refuses to stop until he has finished ‘punishing’
her for being such a ‘wicked slut’. After this treatment, Candy is no longer willing to have sex with
Krish, but he has sex with her anyway, whilst she is tied down and unable to resist. When Candy
discovers how badly Krish has hurt her, she goes to the police station and lays a complaint. As a
result, Krish is charged with three offences:
1. Rape;
2. Crimen injuria;1
3. Assault with intent to do grievous bodily harm (assault GBH).
Krish’s defence to all three charges is that he acted with Candy’s consent throughout the entire
incident. He explains away her cries and protests as mere play-acting; or, at any rate, he says that
is what he believed at the time. Is this defence likely to succeed on each of the three charges?
(note: you need to consider each charge separately)
1
Look up this offence in the Specific Offences section of your textbook and ascertain whether consent
would be a valid defence to such a charge.
21
1.8 JUSTIFICATION: OBEDIENCE TO SUPERIOR ORDERS (SELF-STUDY)
REQUIRED READING
Kemp: Chapter 9
R v Smith (1900) 17 SC 561.
R v Werner & Another 1947 (2) SA 828 (A)
S v Banda 1990 (3) SA 466 (B)
S v Sixishe 1992 (1) SACR 624 (CkA).
S v Mostert 2006 (1) SACR 560 (N)
SHORT QUESTIONS
1. What is the underlying rationale for the defence of obedience to superior orders?
2. To whom does this defence apply?
3. What are the requirements for the defence?
4. In what circumstances can a person rely on this defence if he carried out an unlawful order from
a superior officer?
PROBLEM QUESTION
Xolani and Yusuf are police officers. One day, while Xolani is on duty in the police station, Yusuf
brings in a suspect, Adam, and begins to question him in connection with a recent car theft. When
Adam refuses to answer any questions, Yusuf knocks Adam to the ground and begins kicking him all
over his body and head. Just as Xolani is about to intervene, their Station Commander, Captain
Zondi, comes in to see what is happening. Xolani explains, but Captain Zondi orders Xolani to leave
Yusuf alone and not to interfere. Xolani obediently stands by, whilst Yusuf renews his assault on
Adam, who eventually dies of his injuries. Ultimately, Xolani is charged with culpable homicide. His
defence is that he had no duty to prevent Adam’s death, and that, if he did have such a duty, it was
overridden by the orders of his superior officer, Captain Zondi. Will Xolani succeed in this defence?
22
1.9 JUSTIFICATION: PUBLIC AUTHORITY (SELF-STUDY)
REQUIRED READING
Kemp:2 Chapter 10
Criminal Procedure Act, 51 of 1977, sections 48 and 49 (as amended)
Ex Parte Minister of Safety and Security: In Re S v Walters 2002 (4) SA 613 (CC)
Macu v Du Toit 1983 (4) SA 629 (A)
S v Nel 1980 (4) SA 28 (E)
S v Reabow 2007 (2) SACR 292 (E).
S v Britz 1949 (3) SA 293 (A)
S v Swanepoel 1985 (4) SA 431 (W).
Matlou v Makhubedu 1978 (1) SA 946 (A)
Minister van Wet en Order v Ntsane 1993 (1) SACR 256 (A).
SHORT QUESTIONS
1. What is the underlying rationale for the defence of public authority?
2. To whom does this defence apply and in what circumstances?
3. What are the requirements for a police officer to justify the use of force in effecting an arrest?
4. What additional requirements must be met in order for a police officer to justify the use of lethal
force for such a purpose?
PROBLEM QUESTION
Frik is a member of a police crew, manning a speed trap on the South Coast freeway. Gerhard
drives through the trap in his brand new Porsche, at a speed of 200km per hour. Frik signals
Gerhard to pull off the road, intending to write out a ticket, but Gerhard ignores Frik’s signal. When
Frik realises that Gerhard is not going to stop, he draws his firearm and fires a number of shots at
the departing Porsche. One of his shots hits Gerhard, who loses control of his car and crashes, with
fatal consequences. When Frik is tried for murder, he claims that he was authorised by law to act as
he did; alternatively, that he genuinely believed that he was so authorised. Will either of these
defences succeed?
2
You MUST refer to the 2nd edition of Kemp for this section, as the 1st edition does not deal with the latest
amendments to the Act and is therefore completely out of date.
23
1.10
JUSTIFICATION: LAWFUL CHASTISEMENT (SELF-STUDY)
REQUIRED READING
Kemp: Chapter 11
R v Hopley (1860) 2 F&F 202
R v Janke & Janke 1913 TPD 382 at 385.
R v Le Maitre & Avenant 1947 (4) SA 616 (C);
S v Williams and Others 1995 (2) SACR 251 (CC)
RECOMMENDED ADDITONAL READING
Péte ‘Spoil the Rod …’ 1994 SACJ 295
Bekink ‘When do parents go too far? Are South African parents still allowed to chastise
their children through corporal punishment in their private homes?’ 2006 2 SACJ 173
SHORT QUESTIONS
1. To whom is the defence of lawful chastisement available?
2. What are the essential requirements for this defence? Refer to case authority.
3. Who is lawfully permitted to administer corporal punishment?
PROBLEM QUESTION
Thirteen-year-old Leroy Brown has been behaving very badly at school. Routine punishments such
as extra homework and detention have brought about no improvement in Leroy’s behaviour. In
despair, Leroy’s school principal, Mr Lashem, consults Mr and Mrs Brown, who agree that something
drastic needs to be done. Mr Lashem suggests that perhaps Mr Brown should give Leroy a hiding.
Mr Brown replies that he is all in favour of Leroy receiving a hiding, but he suggests that, because it
is Leroy’s school behaviour that is the problem, it might be more beneficial for the hiding to be
administered at school. Mr Lashem explains, however, why this is no longer possible. Mr Brown
suggests that, to circumvent the problem, Mr Lashem should come to their home and administer the
hiding there. Mr Lashem agrees. The following evening, Mr Lashem arrives at the Browns’ home,
armed with a cane and, in the presence of Mr Brown, administers ‘six of the best’ to Leroy, who is
greatly shocked by this treatment. Leroy complains to Childline and Mr Lashem is ultimately charged
with assault. Can Mr Lashem rely on the defence of lawful chastisement?
24
PART 2: FAULT (MENS REA)
2.1
FORMS OF FAULT: DOLUS (CRIMINAL INTENTION)
REQUIRED READING
Kemp:3 Chapter 19
R v Nsele 1955 (2) SA 145 (A)
S v Nhlapho 1981 (2) SA 744 (A)
S v Shaik 1983 (4) SA 57 (A)
S v Lungile 1999 (2) SACR 597 (SCA)
S v Mamba 1990 (1) SACR 227 (A)
S v Maritz 1996 (1) SACR 405 (A)
S v Makgatho 2013 (2) SACR 13 (SCA)
S v Goosen 1989 (4) SA 1013 (A)
S v Ngubane 1985 (3) SA 677 (A)
S v Beukes 1988 (1) SA 511 (A)
S v Humphreys 2013 (2) SACR 1 (SCA)
S v Pistorius (96/2015) [2015] ZASCA 204 (3 December 2015)
RECOMMENDED ADDITIONAL READING
Loubser & Rabie ‘Defining Dolus Eventualis’ (1988) 3 SACJ 415
Paizes ‘Dolus Eventualis Reconsidered’ 105 (1988) SALJ 636
Paizes ‘Mistake as to the causal sequence …’ (1993) 110 SALJ 493
Boister ‘General Principles of Liability – dolus eventualis’ (1996) 9 SACJ 226
Hoctor ‘Death on the roads and dolus eventualis – S v Humphreys’ (2013) 1 SACJ 75
Paizes 'Dolus eventualis revisited: S v Humphreys …' (2013) 1 Criminal Justice Review 6;
SHORT QUESTIONS
1. What is meant by the term dolus?
2. What is the difference between dolus and:
 Motive?
 Premeditation?
3. Define and explain the three forms of dolus in our law. Give a practical example of each.
4. Which form(s) of dolus are required for a common law crime like murder?
5. What is meant by ‘concrete’ intention? Refer to case authority.
6. What is the test for dolus eventualis in the case of crimes involving unlawful acts, ‘pure’
omissions and states of affairs’?
3
You MUST refer to the 2nd edition of Kemp for this this section, as the section on dolus eventualis has
been substantially revised and updated in light of the Humphreys case.
25
7. What is the test for dolus eventualis in the case of ‘consequence’ crimes?
8. What is meant by ‘subjective foresight’? How does the Court normally determine whether such
foresight existed? Give examples from decided cases.
9. What degree of risk should the accused have foreseen? Refer to case authority.
10. What is meant by ‘foresight of the causal sequence’? Refer to case authority.
11. What is meant by ‘accepting the possibility into the bargain? Refer to case authority.
12. What is meant by dolus indeterminatus and dolus generalis? Give two examples from
decided cases.
PROBLEM QUESTIONS
1. Xolani goes out to shoot ducks at a particular dam. When he gets to the dam, he notices, far
away on the opposite bank, some people having a picnic. Xolani realizes that, if he shoots at a
duck and misses, there is a faint chance that the bullet might strike one of the picnickers. He
decides to go ahead anyway, rather than losing out on his afternoon of duck-shooting. One of
his shots misses the duck and strikes Yusuf, one of the picnickers, with fatal consequences. Did
Xolani have the necessary intention to murder Yusuf? Would your answer be any different if:
Xolani was a crack shot, who had never missed a duck before?

Yusuf was not a member of the picnic party, but had been standing behind a clump of
bushes, where he was not visible to Xolani?
2. Frank wishes to kill Grant, a member of a rival criminal gang. One day, Frank sees Grant
standing at the front gate of his house and decides to stage a drive-by shooting. As he is about
to start firing, Frank notices that Grant is holding his youngest son, a toddler named Harry, in his
arms. He also notices that there are other children playing in the front yard of Grant’s house.
Frank decides to proceed with his plan anyway. He fires off a number of shots in Grant’s
direction from his moving vehicle. Two of the shots strike Grant and kill him. One of these shots
passes through Harry’s body before striking Grant, killing the little boy. A third shot misses Grant
altogether and kills Ian, one of the children playing in the yard. A fourth shot ricochets off the
gatepost and kills Grant’s neighbour, Mrs Jadwat, who is looking out of the window of her
house, which is diagonally opposite Grant’s house. Did Frank have the necessary intention to
murder: (a) Grant; (b) Harry; (c) Ian and (d) Mrs Jadwat? If so, what form of intention did he
have in each case?
3. Musa and Hendrick are at a party and in high spirits. They decide to drive to a nearby take-away
to buy some food. Musa drives and Hendrick, being in a party mood, sits on the bonnet of the
car. After Musa has driven slowly and carefully for about a kilometre, his car unexpectedly hits a
pothole in the road. This causes the car to jolt and Hendrick falls off the bonnet in front of the
car. Before Musa has time to stop, the car runs over Hendrick and kills him. Did Musa have the
necessary intention to murder Hendrick?
26
4. Alf, a radical right-wing political activist, decides to make a dramatic gesture. He takes a live
hand-grenade from his extensive collection of military memorabilia and smuggles it into an
important ANC conference, where he knows that the President, Mr Jacob Zuma, will be present.
At an opportune point in the proceedings, Alf stands up, pulls the pin out of the hand-grenade
and hurls it at the main table, where Mr Zuma is seated together with other top ANC officials.
One of Mr Zuma’s bodyguards, who is standing directly behind his employer, immediately
reaches out, fields the grenade and, since there is nowhere safe for him to dispose of it, hurls it
as far as he can towards the back of the large, crowded conference hall. The grenade explodes
at the back of the hall, killing nineteen people in the immediate vicinity and causing various
degrees of injury to many others present. Alf is subsequently charged with nineteen counts of
murder and numerous counts of attempted murder. At his trial, Alf raises the same defence to
all nineteen of the murder charges, namely that it was his intention to kill Mr Zuma and not the
nineteen persons who actually died. Will this defence succeed?
27
2.2
FORMS OF FAULT: CULPA (NEGLIGENCE) (NO TUTORIAL)
REQUIRED READING
Kemp: Chapter 20
R v Mbombela 1933 AD 269
S v Ngema 1992 (2) SACR 651 (D)
S v Van As 1976 (2) SA 921 (A)
S v Bernardus 1965 (3) SA 287 (A)
S v Van der Mescht 1962 (1) SA 521 (A)
S v Ngubane 1985 (3) SA 677 (A)
S v Mkwanazi 1967 (2) SA 593 (N)
S v Mkwetsha 1965 (2) SA 493 (N)
S v Kramer 1987 (1) SA 887 (W)
RECOMMENDED ADDITIONAL READING
Kruger v Coetzee 1966 (2) SA 428 (A).
Whiting ‘Negligence, Fault and Criminal Liability’ (1991) 108 SALJ 431
Louw ‘The Reasonable Man and the Tikoloshe’ (1993) 6 SACJ 361
SHORT QUESTIONS
1. What are the two main ways in which a person may be negligent?
2. What is the test for culpa in our law?
3. What is this kind of test called?
4. How does the Court determine who the hypothetical reasonable person is? Refer to case
authority.
5. What is the rule where the accused is a person who is expected to have a particular skill,
knowledge or expertise?
6. What is meant by a ‘reasonably foreseeable possibility’?
7. What are the factors that determine the extent of the duty to prevent foreseaeable harm?
8. If a victim’s death was partly the result of his/her own negligence and partly the result of the
accused’s negligence, will this absolve the accused from criminal liability for such death?
9. If an accused is shown to have had dolus, does this mean that s/he cannot also have been
negligent? Refer to case authority.
10. What are the essential differences between dolus eventualis and culpa?
28
PROBLEM QUESTIONS
1. Dr Johnson, a general practitioner, prescribes penicillin tablets for Karl, a new patient.
Unbeknown to Dr Johnson, Karl is highly allergic to penicillin. Karl suffers a violent reaction after
taking the tablets and dies. Is Dr Johnson negligent in respect of Karl’s death?
2. Amith has been taking flying lessons and is almost ready to qualify for his private pilot’s licence.
He has already passed the required legal minimum of 25 hours of dual instruction and 15 hours
of solo flying. He only has to complete the 5 hours of instrument training. Feeling that he is
quite competent to fly, he decides to impress his girlfriend, Zena, by taking her for a flip. The
flight goes well, but when Amith comes in to land, he finds that it has rained heavily and there
are pools of water on the runway. He loses control of the plane and crashes, killing Zena.
Amith’s instructor is of the opinion that Amit would have been able to keep the plane under
control if he had been a more experienced pilot. Is Amith guilty of culpable homicide in respect
of Zena’s death?
3. Bob is driving his heavily-laden taxi along a narrow road, approaching a blind rise. Ahead of him,
on Bob’s side of the road, stands a broken-down bus. In order to pass the bus, Bob must cross
the solid white barrier line in the centre of the road, but he is unable to see whether there is any
oncoming traffic. Bob slows down as he approaches the bus, and then pulls over to the right,
hooting as he does so, in an attempt to warn any oncoming vehicles of his presence.
Unfortunately, at that very moment, Fred is approaching at high speed from the opposite
direction. There is a head-on collision and Fred is killed, along with three of Fred’s passengers.
Is Bob negligent in respect of their deaths?
4. Yasmin has done a hard day’s work and has not eaten all day. Feeling weak from hunger, she
drives to the shop to buy something for her supper. On her way, she has a black-out. Her car
swerves and crashes into an oncoming car and she is charged with negligent driving. Yasmin has
been told that she suffers from hypoglycaemia and that she should eat regular meals to avoid
blacking out, but she has not been expressly warned not to drive with a low blood-sugar level.
Although she has had black-outs before, this is the first time she has had one whilst driving. Is
she guilty of negligent driving?
5. Kelvin is a guard at a railway crossing. One day, whilst on duty, he has an epileptic fit and fails
to change the train signals. As a result, there is a serious train accident and a number of
passengers are killed. Kelvin is charged with culpable homicide. Kelvin has had epileptic fits in
the past, and has been prescribed medication for his condition. He has found that, as long as he
takes his medicine, he does not have any fits. On the day in question, however, he forgot to
take his medicine before leaving for work and he does not keep a supply at work. Is he guilty of
culpable homicide?
29
2.3 CONTEMPORANEITY OF FAULT & CONDUCT (NO TUTORIAL)
REQUIRED READING
Kemp: Chapter 21
S v Chiswibo 1961 (2) SA 714 (FC)
S v Masilela 1968 (2) SA 558 (A)
S v Goosen 1989 (4) SA 1013 (A)
S v Mtombeni 1993 (1) SACR 591 (ZS)
RECOMMENDED ADDITONAL READING
Boister ‘S v Mtombeni: Concurrence Again’ (1993) 6 SACJ 356-360
PROBLEM QUESTIONS
1. Herbert comes home from golf one evening and has a quarrel with his wife, Wilma. In a rage,
Herbert strikes Wilma on the side of her head with the golf club that he happens to be holding.
She falls to the floor, motionless. Herbert cannot find any signs of life and concludes that he
must have killed her. Panic-stricken, he decides to make Wilma’s death look like an accident. He
drives Wilma’s body to an isolated stretch of road, near a dam, arranges the body in the driver’s
seat and pushes the car off the road, down the bank and into the dam. Unbeknown to Herbert,
someone sees him doing this and calls the police. Wilma’s dead body is found in the dam and
Herbert is charged with her murder. The post-mortem examination however reveals that Wilma
did not die as a result of the blow to her head, but from drowning. She was evidently still alive
when the car entered the dam. Because of this, Herbert’s counsel advises him to plead not guilty
to murdering Wilma. Is this advice correct?
2. Agnes decides to murder her husband, Bill, and disguise the murder as an accident. One
evening, she plies Bill with liquor until he is very drunk, entices him into a hot bath and, when
he is least expecting it, pushes his head under the water and holds it there until he stops
struggling. Believing that she has succeeded in killing Bill, Agnes drives his body to an isolated
stretch of road, arranges the body in the driver’s seat and pushes the car off the road and down
a steep hill, so that it crashes and overturns. Unbeknown to Agnes, someone sees her doing this
and reports her to the police. Bill’s dead body is discovered in the wrecked car and Agnes is
charged with his murder. A post-mortem examination reveals that Bill died of multiple injuries
sustained in the car crash, and not from drowning. He was evidently still alive when Agnes
pushed the car down the hill. Because of this, Agnes’s counsel advises her to plead not guilty to
murdering Bill. Is this advice correct?
30
2.4 DEFENCES EXCLUDING FAULT: MISTAKE
REQUIRED READING
Kemp: Chapter 24
S v Ntuli 1975 (1) SA 429 (A)
S v De Oliveira 1993 (2) SACR 59 (A)
S v Naidoo 1997 (1) SACR 62 (T)
S v Dougherty 2003 (2) SACR 36 (W)
S v Nel 1980 (4) SA 28 (E)
S v J 1989 (1) SA 525 (A)
S v De Blom 1977 (3) SA 513 (A)
S v Du Toit 1981 (2) SA 33 (C)
S v Evans 1982 (4) SA 346 (C)
S v Claasens 1992 (2) SACR 434 (T)
S v Mavhungo 1981 (1) SA 56 (A).
RECOMMENDED ADDITIONAL READING
Snyman ‘Defence of Ignorance of the Law’ (1994) 111 SALJ 1
Amirthalingam ‘Distinguishing Ignorance and Mistake ...’ (1995) 8 SACJ 12
SHORT QUESTIONS
1. What is the difference between a mistake and an accident?
2. What requirements must be met in order for an accused’s mistake or ignorance to exclude
dolus?
3. What further requirements must be met in order for an accused’s mistake/ignorance to exclude
culpa?
4. What is the difference between actual justification and putative justification?
5. In putative justification, what essential mistake does the accused make?
6. In which case did the AD decide that mistake or ignorance of the law would exclude dolus?
7. Why will it be difficult for an accused to escape liability for a common law crime on the basis of
his/her mistake or ignorance of the law?
8. Why will it be difficult for an accused to escape liability for a crime requiring culpa on the basis
of his/her mistake or ignorance of the law?
9. What is meant by aberratio ictus? What rules apply in such a case?
10. What is meant by ‘concrete’ intention?
31
PROBLEM QUESTIONS
1. Razia walks into her bedroom one day, to find her 3-year-old son, Damon, holding an open
bottle of her sleeping pills. Razia asks Damon if he has swallowed any pills, but all he says is,
‘Sweeties!’ In a panic, Razia puts Damon into her car and rushes him to hospital, where his
stomach is pumped out. The doctors find no trace of any pills in Damon’s stomach contents and,
greatly relieved, Razia takes him home. In due course, she receives a summons for exceeding
the speed limit while driving to the hospital. What defence should Razia raise? Will she succeed?
For purposes of your answer, you may assume that culpa is the required form of fault for the
offence of exceeding the speed limit. To what extent (if any) would your answer be different if
speeding was an offence involving ‘strict’ or ‘no-fault’ liability?
2. Bongi is awoken one night by the sound of someone moving around in the living room of her
home. She is terrified, because there has been a lot of violent crime in the area lately and, as
her husband, Musa, is away on business, she has reason to think that she is alone in the house
with an intruder. She cannot telephone the police, because the telephone is in the living room.
Eventually, Bongi summons up her courage, takes out Musa’s pistol and creeps out of her
bedroom in the dark. Just as Bongi reaches the door of the living room, a dark figure looms up
right in front of her. Without hesitation, she fires three shots at the figure, which collapses to
the floor. When Bongi turns on the lights, she discovers to her horror that the ‘intruder’ is none
other than Musa, who had returned unexpectedly from his trip and who was creeping around in
the dark so as not to waken her. Bongi is charged with murder. What defence should Bongi
raise? Will this defence be wholly successful, or is Bongi likely to be convicted of culpable
homicide if she is acquitted of murder?
3. Arthur and Martha, an elderly couple, are walking home late one night along a deserted road,
when they are accosted by Fred. Fred produces a gun and holds it to Arthur’s head, demanding
money. Just as Arthur is about to hand over his wallet, Martha reaches into her handbag, pulls
out a pearl-handled revolver and, without hesitation, shoots Fred in the heart. Fred dies
instantly. When the police arrive at the scene and inspect Fred’s gun, they find that it was
unloaded. Martha is charged with Fred’s murder. What defence would you advise her to raise?
Is Martha likely to be acquitted outright, or will she be convicted of a lesser offence like culpable
homicide?
4. Frikkie is a member of a police crew, manning a speed trap on the South Coast freeway.
Gerhard drives through the trap in his brand new Porsche, at a speed of 200km per hour. Frikkie
signals Gerhard to pull off the road, intending to write out a ticket, but Gerhard ignores Frikkie’s
signal. When Frikkie realises that Gerhard is not going to stop, he draws his firearm and fires a
number of shots at the departing Porsche. One of his shots hits Gerhard, who loses control of
his car and crashes, with fatal consequences. When Frikkie is tried for murder, he claims that he
genuinely believed that he was authorised by law to act as he did. Is this defence likely to
succeed?
5. Gugu, an enterprising commerce student, decides to make some money for her favourite
charity, by selling hot dogs on the corner of Smith Street and Gardiner Street on Saturday
mornings. Gugu is not sure whether she needs a licence to do this, so she asks her boyfriend,
Muzi, who is a final year LLB student. Muzi tells Gugu that, because she is selling the hot dogs
for charity, she does not need a licence. Gugu then goes ahead with her plan. It turns out that
Muzi was wrong:- A municipal by-law makes it a criminal offence to sell food in the city centre
without a food vending licence. Assuming that culpa is the required form of fault for the
commission of the said offence, is Gugu guilty of contravening the by-law?
32
PART 3: CRIMINAL CAPACITY
3.1 DEFENCES EXCLUDING CRIMINAL CAPACITY: MENTAL ILLNESS
REQUIRED READING
Kemp: Chapters 14 & 15
Chapter 13 of the Criminal Procedure Act 51 of 1977
S v Luphuwana 2014 (1) SACR 503 (GJ)
S v Mahlinza 1967 (1) SA 408 (A))
S v Stellmacher 1983 (2) SA 181 (SWA) (esp definition of mental illness at 187)
S v Mabena 2007 (1) SACR 482 (SCA)
S v Harris 1965 (2) SA 340 (A)
S v McBride 1979 (4) SA 313 (W)
S v Kavin 1978 (2) SA 731 (W)
RECOMMENDED ADDITIONAL READING
S v Roberts 1957 (4) SA 265 (A)
S v Lehnberg 1975 (4) SA 553 (A)
S v Mnyanda 1976 (2) SA 751 (A)
S v Eiman 1989 (2) SA 863 (A)
S v Engelbrecht 2005 (2) SACR 41 (W) & 2005 SACR 163 (W)
S v Mtshali 2012 (2) SACR 255 (KZD)
Fox ‘Sin, Crime and the Psychopath’ (1964) 27 Modern Law Review 190
Delaney & Peters ‘The Psychopathic Offender’ (1966) 1 Responsa Meridiana 63
SHORT QUESTIONS
1. What are the two essential requirements for an accused to have criminal capacity?
2. What are the four defences in our law that will exclude criminal capacity?
3. What is the difference between pathological and non-pathological criminal incapacity?
4. What were the M’Naghten and irresistible impulse rules?
5. What are the three categories of mental functions in human beings?
6. When will a disintegration of these functions result in a person lacking criminal capacity?
7. What is the difference between lack of criminal capacity and unfitness to stand trial?
8. What is the difference between lack of criminal capacity and diminished responsibility?
9. What is meant by the term ‘mental illness’?
33
10. What is meant by the term ‘mental defect’?
11. Who bears the onus of proof when a defence of mental illness/defect is raised? What degree of
proof is required?
12. What are the requirements for this defence?
13. What will the verdict be if the defence succeeds?
14. What are the possible consequences of such a verdict?
PROBLEM QUESTIONS
Explain whether the accused in the following scenarios will meet the requirements for the defence of
mental illness or defect (specify) in our law, as well as the likely implications for them if the defence
does succeed. In relation to problem 3, explain also why Bertha’s counsel might have been reluctant
to raise the defence of mental illness or defect if the relevant events had taken place prior to 2002:1. One day, Adam, a quiet, unassuming youth of 19, runs out of his house shouting that he has
just killed ‘the devil’. Neighbours go to investigate and find the body of Adam’s mother lying in
the sitting room. She has been stabbed to death with a pair of scissors. Adam shows no
remorse. His only comment is that he had to kill her because ‘he saw the devil looking out of her
eyes.’ He is arrested and charged with murder. Adam’s counsel raises the defence of mental
illness and Adam is sent for mental observation. The psychiatrists who examine Adam report
that he is mentally disturbed. He ‘hears voices in his head’ and is unable to distinguish between
fantasy and reality.
2. After experiencing severe depression for a number of years, John feels that he cannot go on
living. He decides to kill himself and take his family with him, so that they will all live happily
together in the life hereafter. In execution of his plan, he shoots and kills his wife. Before he
does anything else, he is apprehended and charged with murder. At his trial he argues that, at
the time of the killing he lacked criminal capacity due to mental illness. When John is sent for
mental observation, the psychiatrists report that he is suffering from endogenous depression
and that, because of this, he may have been unable to prevent himself from killing his wife.
3. Bertha, a 45 year old woman, is arrested and charged with shoplifting for the fifth time. Bertha’s
family are convinced by now that there must be something ‘wrong’ with her. At her trial, her
counsel raises the defence of mental illness. The court sends Bertha for mental observation. The
psychiatrist who examines her reports that she suffers from kleptomania – an overwhelming
compulsion to steal.
34
3.2 DEFENCES EXCLUDING CRIMINAL CAPACITY: YOUTH (NO TUTORIAL)
REQUIRED READING
Kemp: Chapter 16
Weber v Santam 1983 1 SA 381 (A) at 403C
S v Pietersen 1983 4 SA 904(E)
S v Ngobese 2002 (1) SACR 562 (W)
S v TS 2015 (1) SACR 489 (WCC)
S v Kubeka 1980 (4) SA 221 (O)
RECOMMENDED ADDITIONAL READING
Walker ‘The requirements for criminal capacity in section 11(1) of the new Child Justice
Act …’ (2011) 24 SACJ 33
Walker ‘Determining the criminal capacity of children aged 10 to 14 years …’ (2015)3 SACJ
337
PROBLEM QUESTION
Adam, Brent and Calvin are brothers. Adam is 16 years old, Brent is 13, and Calvin is 9. One night,
Adam tells his two younger brothers that they must help him to get some goods for their home,
such as a TV set and a DVD player. He tells them that they are going to obtain these goods from a
house down the road. When they reach the house in question, they find it unoccupied and in
darkness. Adam finds a small, unguarded window at the back of the house and forces it open. Being
too big to fit through the window himself, he tells Brent to climb in and open the back door from the
inside. Brent refuses, because he feels it is not right to go into someone else’s house in their
absence. Adam tells Brent that, in that case, he must go and keep watch in the front yard and shout
out a warning if the owners return. Brent does as he is told without further argument. Adam then
tells Calvin that he must climb through the window and open the door. Calvin also refuses, because
he is scared of being alone in the dark house. Adam threatens Calvin with a hiding if he does not do
as he is told and Calvin complies. He opens the door from inside and Adam enters. Brent then
notices the owners returning and tries to warn the others. They fail to hear Brent’s warning and are
found in the house. All three brothers are then arrested by the police. Explain, with full reasons,
whether (a) Adam, (b) Brent and (c) Calvin each had the necessary criminal capacity to be liable for
the crime of housebreaking with intent to steal. In the course of your answer, explain also to what
extent, if any, their respective positions have changed under the provisions of the Child Justice Act,
Act No 75 of 2008.
35
3.3 DEFENCES EXCLUDING CRIMINAL CAPACITY: INTOXICATION
REQUIRED READING
Kemp: Chapter 17
S v Johnson 1969 (1) SA 201 (A)
S v Chretien 1981 (1) SA 1097 (A)
S v Lange 1990 (1) SACR 199 (W)
S v Mbele 1991 (1) SA 307 (W)
S v Ingram 1999 (2) SACR 127 (W)
RECOMMENDED ADDITIONAL READING
S v Hutchinson 1990 (1) SACR 149 (D)
Paizes ‘Intoxication Through the Looking Glass’ (1988) 105 SALJ 777
Burchell ‘Intoxication after Chretien’ (1988) SACJ 274
Burchell Principles of Criminal Law (textbook), pgs 409 – 423 (comment & comparative
perspective)
SHORT QUESTIONS
1. What was the Roman-Dutch law approach to liability in cases involving VOLUNTARY intoxication?
2. What was the English law approach in such cases?
3. What was the early South African common law approach? Refer to a case in which this approach
was applied.
4. What case changed the South African common law and in what way?
5. What Act did the legislature pass after this case had changed the law and what was its overall
purpose?
6. What are the requirements for liability for a contravention of section 1(1) of the Act?
36
PROBLEM QUESTIONS
1. One evening, after drinking at a local pub, Eric drives out of the pub’s parking lot at high speed
and runs straight over Faith, who happens to be walking across the vehicular entrance to the
parking lot at the time. Faith is badly injured and the authorities decide to charge Eric with
attempted murder. Eric pleads not guilty at his trial, explaining that he was slightly drunk at the
time and, because of this, he did not notice Faith crossing the entrance to the parking lot. The
state however calls a witness, Grant, who testifies that he saw Eric in the pub on the evening in
question and that Eric was so drunk by the time he left the pub that he could barely walk or talk
and ‘did not even know what he was doing’. Eric raises the defence of intoxication. Will this
defence succeed and, if so, why? (ie, what element of criminal liability has been excluded by the
intoxication?) What are the implications for Eric of section 1 of the Criminal Law Amendment
Act, No 1 of 1988, if his defence does succeed. In the course of your answer, explain what
difference, if any, it will make to Eric’s liability whether the Court accepts his (Eric’s) version of
events, or whether it prefers Grant’s evidence.
2. Bob, an inexperienced drinker, goes pub-crawling to celebrate the end of exams. He starts off at
Jack Rabbit’s, where he drinks five beers in quick succession. After this, he feels very relaxed and
happy and his movements are no longer very co-ordinated. As he is leaving Jack Rabbit’s, he trips
and drops his car keys into the lap of Zelda, one of the female patrons. Bob gropes around
inappropriately in Zelda’s lap, retrieving his keys. This clearly offends Zelda, but Bob feels too
relaxed and happy to wonder why.
Bob’s next stop is Billy the Bum. Here he drinks three double whiskies and three tequilas. He
finishes up by having a few ‘shooters’ for the road. When he gets up to leave for his next
destination, he finds that he is having considerable difficulty walking and that he has to hold onto
the furniture for support. Just as he is leaving, Zelda arrives in the company of her boyfriend,
Krish. Zelda has evidently told Krish what happened at Jack Rabbit’s, because Krish comes up to
Bob and angrily tells him to leave Zelda alone in future. Bob mumbles something that might be an
apology and bumps into Krish. This causes Krish to trip and fall, hitting his head on the bar
counter and fracturing his skull. The police are summoned and Bob is arrested and taken to the
police station.
At the police station, Bob is put in a cell with a man named Dave, who is also very drunk. By now
the ‘shooters’ have begun to take effect and Bob passes out. When he comes round in the early
hours of the morning, he finds Dave lying next to him, dead. He has been strangled to death. Bob
has absolutely no memory of killing Dave, and no idea why he might have done so, but since there
were only the two of them in the cell that night, he is the obvious culprit.
In due course, Bob is charged with the following crimes:
1. Sexual assault in respect of the inappropriate groping of Zelda;
2. Assault with intent to do grievous bodily harm (assault GBH) in respect of the injury of
Krish; and
3. Murder in respect of the death of Dave.
Can Bob successfully raise the defence of voluntary intoxication to each of these three charges?
And what are the implications of section 1 of the Criminal Law Amendment Act, No 1 of 1988, if
his defence succeeds in each case?
37
3.4 DEFENCES EXCLUDING CRIMINAL CAPACITY: TEMPORARY NON-PATHOLOGICAL
CRIMINAL INCAPACITY
REQUIRED READING
Kemp: Chapter 18
S v Arnold 1985 (3) SA 256 (C)
S v Campher 1987 (1) SA 940 (A)
S v Wiid 1990 (1) SACR 560 (A)
S v Kensley 1995 (1) SACR 646 (A)
S v Nursingh 1995 (2) SACR 331 (D)
S v Moses 1996 (1) SACR 701 (C)
S v Kok 2001 (2) SACR 106 (SCA)
S v Eadie 2002 (3) SA 719 (SCA)
RECOMMENDED ADDITIONAL READING
Louw ‘The End of the Road for the Defence of Provocation?’ (2003) 16 SACJ 200.
For an international perspective, see:
McSherry ‘Getting Away With Murder? Dissociative States & Criminal Responsibility’
(1998) 21(2) International Journal of Law & Psychiatry 163.
McSherry ‘Criminal responsibility, “fleeting states” of mental impairment and the power
of self-control’ (2004) 27 International Journal of Law & Psychiatry 445.
SHORT QUESTIONS
1. What was the Roman-Dutch law approach to liability in cases involving provocation?
2. What was the English law approach in such cases?
3. What is the current approach in our law to such cases?
4. In what way did the defence of TNPCI attempt to introduce a new approach to cases involving
provocation?
5. What, in principle, is the difference between the defence of TNPCI and the defence of
psychogenic sane automatism?
6. In practice, will this distinction be recognised by a court?
7. Who bears the onus of proof where such a defence is raised?
8. What natural inference will assist the party concerned to discharge this onus?
9. How much weight will the court attach to expert evidence in such cases? Why?
10. What are the distinguishing characteristics of a true case of TNPCI/psychogenic sane
automatism?
38
PROBLEM QUESTION
Harry is a corporal in the army and a notorious racist. He continually singles out his black subordinates
for abuse and humiliation, but takes a particular dislike to Innocent, who he thinks is cheeky. He
punishes Innocent for the slightest reason, giving him extra duties and depriving him of recreational
privileges. This continues for about a year, during which time Innocent develops feelings of intense
fear and hatred towards Harry. He begins having nightmares in which Harry is trying to kill him and he
has to fight for his life. One day, after Innocent has failed to carry out Harry’s orders fast enough,
Harry decides to teach Innocent a lesson in ‘military discipline’. That night, he keeps Innocent up until
after midnight, cleaning out the latrines; then, at 04h30 the next morning, he wakes him up and
orders him out to the parade ground for further punishment. First Innocent is made to run three laps
of the parade ground, wearing a full back-pack and carrying his rifle, then he is made to do fifty pressups while Harry stands over him, shouting abuse. Harry makes Innocent repeat this entire exercise
five times, but, during the last set of press-ups, Innocent collapses from exhaustion (he has also had
nothing to eat or drink that morning). Harry screams at Innocent to finish the press-ups. Innocent
staggers to his feet with a wild, unfocused look in his eyes, raises his rifle and aims it at Harry. Harry
responds by taunting Innocent with the words: ‘Go on, you stupid black fool, shoot me if you dare!’
Instantly, Innocent fires at Harry and kills him. Innocent is charged with murder, but claims that,
because of the provocation he received and the extreme emotional and physical stress he was under
when he shot Harry, he acted involuntarily and/or without being able to control himself. You are
instructed to defend Innocent. Indicate what defence you would raise and explain the way in which
our courts will now approach such cases. Consider what facts you could rely on to support your case,
and what additional information you would seek for that purpose. Note: A vital piece of information
has deliberately been omitted from the given facts. What is it and why is it important?
39
PART 4: PARTICIPANTS IN CRIME
4.1 CO-PERPETRATORS, ACCOMPLICES & ACCESSORIES AFTER THE FACT
REQUIRED READING
Kemp: Chapter 25
Common purpose
R v Nsele 1955 (2) SA 145 (A)
S v Nhlapho 1981 (2) SA 744 (A)
S v Shaik 1983 (4) SA 57 (A)
S v Lungile 1999 (2) SACR 597 (SCA)
S v Mgedezi 1989 (1) SA 687 (A)
S v Motaung 1990 (4) SA 485 (A)
S v Singo 1993 (1) SACR 226 (A)
S v Nduli 1993 (2) SACR 501 (A)
S v Nkwenja 1985 (2) SA 560 (A)
S v Safatsa 1988 (1) SA 868 (A)
S v Thebus 2003 (2) SACR 319 (CC) and 2003 (6) SA 505 (CC)
Accomplice liability
S v Williams 1980 (1) SA 60 (A)
S v Mahlangu 1995 (2) SACR 425 (T)
Accessories after the fact
S v Nooroodien 1998 (2) SACR 510 (NC)
R v Gani 1957 (2) SA 212 (A)
S v Phallo 1999 (2) SACR 558 (A)
RECOMMENDED ADDITIONAL READING
S v Nzo 1990 (3) SA 1 (A) (see especially the dissenting judgment of Steyn JA)
Matsukis ‘The Nature and Scope of Common Purpose’ (1988) SACJ 226
Unterhalter ‘The Doctrine of Common Purpose’ (1988) SALJ 671
Whiting ‘Joining In’ (1986) SALJ 234
Paizes ‘Common Purpose by Active Association…’ (1995) 114 SALJ 561.
SHORT QUESTIONS
1. What three categories of person will be regarded as perpetrators/co-perpetrators?
2. Explain the doctrine of common purpose and its legal effect.
3. How is the scope of a common purpose determined? Give practical examples, drawn from
decided cases.
4. In what two ways may a person accede (become party) to a common purpose?
40
5. Can a person accede to a common purpose by means of an omission?
6. What are the requirements for a person to accede to a common purpose by conduct?
7. What are the requirements for a party to a common purpose to withdraw from that common
purpose?
8. How is liability for additional (collateral) crimes determined in cases of common purpose?
9. What is the effect of the contemporaneity rule on common purpose liability?
10. Can one be liable for culpable homicide on the basis of common purpose?
11. In which decided case was the constitutionality of the common purpose doctrine challenged?
What was the Constitutional Court’s decision?
12. What is an accomplice?
13. What are the three ways in which a person may become an accomplice (ie, without becoming a
co-perpetrator)?
14. What is an accessory after the fact?
15. What are the requirements for liability as an accessory after the fact?
PROBLEM QUESTIONS
1. Jon and Sam see Ken walking home late one night and decide to rob him. Jon has a knife, which
Sam admired earlier in the evening. They confront Ken and demand his valuables. Ken hands over
his cell phone to Sam, who runs away with it, satisfied with his share of the spoils. Jon stays
behind, demanding Ken’s money. When Ken insists that he has no money, Jon stabs Ken in the
arm, wounding him. Fred, a homeless person who sleeps in the bushes nearby, sees what is
happening and joins in, kicking Ken in the legs until he falls down. Jon then stabs Ken in the heart,
killing him instantly. Jon finds Ken’s money and runs away with it. Fred starts to remove Ken’s
shoes, but runs away empty-handed when he notices people approaching the scene. Are (a) Jon,
(b) Sam and (c) Fred liable for Ken’s murder?
2. Vusi is walking home one day, when he sees a mob of people surrounding one of the houses.
Some people are shouting and throwing stones at the windows. Others are standing by,
watching the proceedings. When Vusi asks what is happening, he is told that the occupant of
the house, Obed, is suspected of raping a child and the child’s family wants to take him to the
police. Vusi joins the bystanders, because he wants to see what happens. Eventually, some
members of the mob break down the door and drag Obed outside. They start to drag him down
the street towards the police station, but he breaks free and tries to run away. At this point, Vusi
springs into action and brings Obed down with a well-aimed rugby tackle. The mob then moves
in, crying: ‘Kill him! Kill the rapist!’ and bashes Obed to death with stones. Is Vusi liable for
Obed’s murder? 4
4
For a decided case with somewhat similar facts see S v Khumalo 1991 (4) SA 310 (A).
41
3. Alan, Bob and Charles decide to break into a particular house one night, believing it to be
unoccupied. They are not carrying any weapons. Alan breaks a window and he and Bob climb
through, whilst Charles remains outside in the yard, keeping watch. Just as Alan and Bob are
busy ransacking the living room, the door opens and the elderly grandmother of the house
comes in to see what is happening. Evidently, she did not go out with the rest of the family as
they thought. Alan and Bob hastily discuss this unexpected development. Alan is of the view that
they will have to kill the old lady so that she cannot identify them, but Bob hesitates. Before Bob
can say anything, however, the old lady recovers her wits and starts screaming. Alan
immediately overpowers her and smothers her to death with a cushion. He then grabs a few
valuables and exits through the window. Bob does the same. Once outside, they meet up with
Charles, who clearly has no idea of what has just happened in the house. All three of them go
off together and share out the stolen goods. Are (a) Alan, (b) Bob and (c) Charles liable for the
murder of the grandmother? To what extent would your answer differ if, for example, Alan and
Bob had carried a weapon or worn masks to disguise their faces?
4. Kate has an affair with Leon, a married man, who has an 18-month-old baby boy, Mark. Leon
often tells Kate that he would gladly leave his wife and marry her, but he cannot bring himself to
part with his son. Kate becomes convinced that Mark represents her only obstacle to a life of
bliss with Leon. She offers Neil and Obed, two local gangsters, R10 000 to kill the baby. She tells
them that the best time for them to do this would be when Leon and his wife are out at work,
leaving the baby in the care of their domestic worker, Pat. Neil and Obed duly arrive at Leon’s
house one weekday at about 10 am. Obed is armed with a sharp knife, which Neil admired
earlier that morning. They find Pat in the laundry and are able to overpower her easily, without
using the knife. Together they tie her up with some pantyhose which they find in the laundry.
Pat keeps on trying to shout for help, so Obed also grabs a sock that is lying nearby and stuffs it
into Pat’s mouth, then gags her with a handkerchief. They leave her lying on the floor of the
laundry and go in search of little Mark, whom they find lying in his cot. Obed takes out his knife
and is just about to use it on Mark, when the little boy opens his eyes and starts to cry. This is
too much for Obed, who has children of his own. He throws down the knife and walks out of the
house, leaving Neil behind. Neil picks up the knife from the floor and slits the baby’s throat,
killing him. He then runs after Obed and catches up with him in the street. Although Pat is still
alive at this stage, Obed has pushed the sock so far into her mouth that she cannot breathe
properly and she chokes to death a short while later.5 Neil and Obed subsequently claim their
R10 000 payment from Kate and share the money between them. On the given facts, are (a)
Kate, (b) Neil and (c) Obed liable for the murders of (1) Mark and (2) Pat?
5
For the process of inferential reason used in cases of tying up and gagging, see Dlamini and Another v
The State [2006] SCA 110 (RSA):- www.supremecourtofappeal.gov.za
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PART 5: INCHOATE (INCOMPLETE) CRIMES
5.1 ATTEMPT, INCITEMENT AND CONSPIRACY (NO TUTORIAL)
REQUIRED READING
Kemp: Chapter 26
Attempt
R v Nlhovo 1921 AD 485
R v Schoombie 1945 AD 541
R v Katz 1959 (3) SA 408 (C)
S v Phiri 2014 (1) SACR 211 (GNP)
R v Hlatwayo 1933 TPD 441
R v Davies 1956 (3) SA 52 (A)
Incitement
R v Milne & Erleigh 1951 (1) SA 791 (A)
S v Nkosiyana 1966 (4) SA 655 (A)
Conspiracy
R v Harris (1927) 48 NLR 330
S v Alexander (2) 1965 (2) SA 818 (C)
PROBLEM QUESTIONS
1. Martha discovers that her husband, Arthur, has been having a series of affairs behind her back.
She decides to exact revenge by poisoning him. She manages to procure some arsenic, which is
a cumulative poison, and starts adding it to his food in tiny doses. After a time, Arthur becomes
so ill that he believes that he is dying. He does not want to die with his adultery on his
conscience, so he summons Martha to his bedside and confesses all, begging her forgiveness.
Martha is so moved by Arthur’s confession and his evident remorse that she decides to forgive
him. She discontinues the poisoning and Arthur gradually begins to recover. In the meantime,
the doctor who has been attending Arthur has grown suspicious about his mysterious ‘illness’.
He arranges for toxicology tests and discovers the arsenic in Arthur’s system. Martha is
ultimately charged with attempted murder. Is she guilty of this offence?
2. Yunus and Zola are petty thieves, who are looking for an opportunity to commit a really big
crime. One afternoon they are hanging out on the street corner, when they are joined by Mpho.
In the course of conversation, Mpho tells them about a house in Umhlanga, which contains
many valuable items. He explains that the sole occupant is an old man, who will be unable to
offer any serious resistance. Yunus and Zola agree that this is the opportunity they have been
waiting for, but they are very nervous, as they have never tried housebreaking or robbery
before. They assemble the means to commit the crime – a toy pistol, a crowbar and 15 metres
of nylon rope – and, later that same night, they drive to the house in question, following Mpho’s
directions. They drive into the yard, but, after watching the house for a while and slowly sipping
from a half-jack of cane spirits to strengthen their resolve, their courage fails them and they
decide to leave. Just as they are driving out of the yard, however, they are stopped and arrested
43
by the police. It turns out that Mpho is a police informer and the police have been lying in wait
for them all night. Yunus and Zola are charged with attempting to commit the crime of
housebreaking with intent to rob/steal. Are they guilty of this offence?
3. Marge and Norman, a married couple, are in desperate financial circumstances. They often
speak longingly about the day when Marge’s wealthy grandmother will die and they will inherit
her money. One day, in the midst of one of these conversations, Marge says half-jokingly to
Norman:- ‘How I wish that somebody would just bump off the old lady!’ In the room with them
at the time is their 19-year-old son, Oscar, who is slightly unstable and always in trouble of
some sort. Oscar has been pestering Marge and Norman for ages to buy him a car and he is
tired of hearing the excuse that they can’t afford it. Overhearing Marge’s comment, Oscar
decides to do himself and his parents a favour. He goes off and murders his great grandmother.
Is Marge guilty of incitement to commit murder?
44