CRIMINAL LAW
MASTER NOTE – CAUSATION
INTRODUCTION
 This element doesn’t apply to all crimes
o Only applies to consequence crimes (Snyman = materially defined crimes)
 Prohibits/criminalizes the causing of a consequence (result or effect & not the conduct itself)
 Consequence caused by the accused’s conduct
o Example – murder (culpable homicide
o Intentionally/negligently causing death of another @ time & place of death
 many different types of conduct to achieve this crime
 pushing someone (not crime) – off a cliff = crime (death)
 Nexus (Latin for link) that’s factually & legally linked to a prohibited consequence
o Nexus between the accused’s conduct & the prohibited consequence
o More specifically is there sufficiently close connection
 Between accused’s conduct & unlawful result (accused -> death)
 Causation tested for in 2 ways: (both must be present – causation is present)
 *1 is missing – no consequence crime but maybe circumstance crime
o Factual link
o Legal link
o
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Crime where causation is not a requirement
 Circumstance crimes (formally defined crimes)
 Focuses on/ criminalizes = prohibited act (what accused did)  possible consequences
o Provided accused’s conduct is prohibited by law = accused can be convicted
o Doesn’t matter if act had any further unlawful result
 Example – Reckless/negligent driving
 Crime regardless of consequence that’s caused
Established by proving: (whose wide scope of liability must be limited by)
FACTUAL CAUSATION
(1st step in determining if a close enough link is present between C & C)
(Must be proven beyond a reasonable doubt)
 But for X’s conduct the result would not have been caused or would not have been caused in the way it was
 Which is established by means of the:
o CONDITIO SINE QUA NON test (for + act)
o CONDITIO CUM QUA NON (for omission)
 Add conduct to legal scenario to see is consequence disappears
 Sine = without/ cum = with
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Test works differently whether there is a positive act (muscle movement) / omission
Conditio sine qua non = condition without which something wouldn’t materialize
o To see if accused + act is FC linked = we hypothetically eliminate it
 If we can’t do this without result also disappearing = FC present
 Example – Y is dead (ate a PB bread given by X) (+ act)
 Y’s doctor (scientific knowledge) – died anaphylactic
 Natural experience – PB maybe responsible
 But for X giving bread to Y – would Y still be dead
 Example – (omission – no + act when they had legal duty to)
 Y is 5-year-old & X is mother
 Y is allergic to PB (mom carries pen for it)
 Y eats PB – X doesn’t give pen injection = Y dies
o Special protective relationship (X legal duty to Y)
 Add in pen injection – see if Y still dies
 If evidence shows injection saved Y (FC link)
 This is used = when a prelim conclusion is that a link is present (need to check it)
 Snyman – not a test at all but rather a way of checking ex post facto
 After the time whether FC is there
 Also known as the “but for” test (check all the facts applicable to the case)
o But for the accused conduct would the specific consequence occurred at all
 Or when it did / or should have done – result occurred at all
 What would happen if accused conduct not happened = same result?
 Conduct is not FC (yes) / conduct is FC (no)
 According to which accused’s conduct is precondition for prohibited consequence
 Determines whether there is factual link (nexus) between accused’s conduct & consequence
 This based on scientific knowledge & natural experience (sometimes + expert advice)
LEGAL CAUSATION
(2nd step - limits factual causation) (one that must lead to the most just result) (finding a sufficiently close connection)
 Example – X giving Y PB bread = killed him
 Bread given FC linked to Y’s death
 Café owner selling X PB – if not sold (Y would not die) = taken to extremes
 Countless others are not THE cause of Y’s death (unfair)
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How can you justify not holding someone liable = policy limits to end at link in causal chain
Which determines whether there is a legal link (nexus)
o Based on -> policy considerations (legal criteria) such as: (to determine LC present)
 Reasonableness
 Fairness
 To regard a person the legal cause of a particular consequence
 Between conduct & prohibited consequence
 With sufficiently close connection
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Which is established by means of: (tests to help courts determine this)
o (1) Individualization theories
o (2) Adequate cause test
o (3)Test abnormal intervening event (novus actus interveniens)
 In picking which test to use = use the one that is most fair & reasonable
 Which may be combined in terms of the flexible approach
 Can be applied – but underlying LC question still remains more important =
 To establish if a sufficiently close connection between (C & C)
 If it’s = reasonable and fair on policy grounds to hold accused liable
 If not = accused is not liable
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(1) Individualization theories (generic term – cover a variety of tests)
o Tries to single out the single most important cause – then pointed as the LC
 All have the same aim – and ID this cause with different terminology
o Which try to establish whether an accused’s conduct is:
 Proximate cause
 Nearest or closest (cause that’s closest in time to consequence)
 The causa causans (cause of causes)
 The most decisive clause
 The direct cause
 All of which of a prohibited consequence
 The most direct or efficient cause / substantial clause
o Issue with approaches = criteria used to decide causes is arbitrary & based on coincidence
 Doesn’t take into account multiple acts that may contribute equally to consequence
 Vague and arbitrary nature = difficult to use in all times
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(2) Adequate cause test (preferred by Snyman)
o Act is LC of situation if according to human experience in the normal course of events the act
typically has tendency to bring about that type of situation
 Which tries to establish whether an accused’s conduct
 According to human experience in the normal course of events T
 Which typically has the tendency to bring about a prohibited consequence
 This test is forward looking – typical/probable (normal to be expected)
 Looks at act is according to human experience = if it is, then it is linked to legal result
 What would one would expect to happen?
 Can be vague = what factors used to decide what is typical or probable
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(3) Novus actus interveniens (ever in doubt – think of flexible approach – sufficiently close connection)
o New intervening event (negative way of testing LC)
 LC assumed to be there (point of departure) if act is CSQN of a result
 & there is no novus actus (no break in the chain)
 Not every event breaks the chain – must be truly abnormal
 Asks if unexpected event occurred between what accused did & unlawful result
 Serve to break chain of causation – abnormal or normal judged by general human exp
o Which tries to establish the existence of an abnormal intervening event
 Not: (abnormal enough to break the chain of causation) = exclude LC
o
A victim’s pre-existing physical susceptibilities (thin skull rule)
 More vulnerable to an assault (thinner skull) (weak heart)
 Example – Y get hit on the head by X and dies
 Average skull = would not have died
 Thin skull can’t be taken into account in for X
 This is not possible – abnormal skull
o Not new intervening event (existed prior to hit)
o Thin skull – accused X must take victim as he finds it
o No argument here – cannot exclude legal causation
o
A victim’s emotional or religious characteristics (never been SA case on it)
 Example – X stabs Y (now needs a blood transfusion)
 Refuses this for religious beliefs/pathological fear of needles
 In Mokgethi case – judge said this refusal is not unreasonable
 Should not break causal case
 Not clear if SA would follow same decision as Blaue case
 Hard to apply it to unreasonable/arbitrary/spontaneous requests from victims
 (Over well-established religious ones)
 Unreasonable refusal of medical treatment/advice
 Is enough to break the causal chain
o
Improper medical intervention
 Bad medical treatment can break the chain of causation
 This depends on how bad the treatment is
o Bad treatment should not break the chain
o Applies when:
 Wound is deliberately inflicted
 Wound is potentially fatal
 Wound still an operating and substantial cause of death
(victim not yet sufficiently recovered from the original wound)
o
A victim’s suicide
 Concerns victim’s conduct
 Example – victim committing suicide after an injury
 This depends on the facts of the case
 If suicide was completely INDP = no crime is committed
 Example – X puts Y in a position to commit suicide
 Is X responsible for a crime? & what crime?
 If X helps Y commit crime – crime is committed
 Despite the voluntary nature of the suicide
 Where the suicide not foreseen but reasonably foreseeable
o X maybe guilty of culpable homicide
 If the suicide is foreseeable
o X maybe be guilty of murder
That breaks the chain of causation between the accused’s C and the prohibited C
CASES
S V MOKGETHI EN ANDERE 1990 (1) SA 32 (A)
 State determined that we shouldn’t regard anyone of the tests as superior to others
o Or always to able to answer if LC is present
 Judge van Heerden – better use a broader approach instead
o Entail a flexible general test to be applied for LC
o Specific tests then used as aids to guide us
 Still important
 Underlying question that’s more important = sufficiently close connection between C & C
 Judge was somewhat prepared to consider the victim’s emotional state (depression)
o Made him less likely to follow medical advice
o Only if this was proven that the depression preceded his failure to follow medical advice
 Judge said was not the case
 Judge said the victim’s failure to follow medical advice did break the causal link
 Unreasonable refusal following of advice – this applies to where the wound is no longer lethal
o Even if it was initially a potentially lethal wound
o Unreasonable enough to break the chain
LEE V MINISTER FOR CORRECTIONAL SERVICES 2013 (2) SA 144 (CC)
 Lee contracted TB in jail (he sued and then won)
 This was overturned on appeal
o Found there was absent proof that an adequate TB management system would have stopped this
o FC not established – the law doesn’t need to apply the but-for test here
o There was a probable chain of causation between the negligence of the system and Lee’s infection
S V DANIËLS EN 'N ANDER 1983 (3) SA 275 (A)
 Related to cause test
 Adequate cause & novus actus – result in different results
 2 Daniels brothers (Andries & Samuel) being driven by Jacobus from Grabow to Caledon in taxi
o Instructed Jacob to the Swartrivier turn off
o After driving Jacob was instructed to stop – brothers got out
o Andries got out and shot Jacobs – Samuel followed after
o Jacobs fell to the ground (injured)
 Another shot fired at head (2 of the 5 judges = proof 2 judges used to kill Jacob)
o Botha JA & Nichols AJA
o Applied legal doctrine – common purpose doctrine – shared aim of killing Jacob
o Causation is irrelevant – no proof further (both guilty of murder) last shot didn’t matter
 Other judges denied this – fact did not show BRD common purpose present
o Need to determine FC & LC link (between either brother & Jacob’s death)
o There was no evidence BRD who pulled headshot
 Didn’t know for sure who it was
o Majority assumed that Samuel shot it
 Causation tests:
o Individualization theories
 2 judges (Van Winsen AJA & Jansen JA) – refused to apply proximate cause test
 Look for headshot – nobody knew who
 Unfair to look at just the headshot (neither convicted of murder)
o Adequate cause test
 Jansen JA – Andries guilty = back shots (rendered Jacob’s FC a sitting target)
 Held that human experience – back shots were serious and could lead to death
 Finding supported by Van Winsen AJA – the distance to a hospital too far
 Wouldn’t matter because Jacob would have died anyway
 Nature in the mortal wounds to cause death – later intervening event (headshot)
o It didn’t matter
 Andries FC & LC cause of the death
o
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Novus actus interveniens test
 Trengove JA & Nicholas AJA in obiter dictum disagreed
 Headshot was abnormal & changed things
 They agreed with Jansen - FC should be limited LC on policy grounds
 They disagreed with how it should be done on the facts
 Trengove – Andries’s shots could have & likely been deadly they were not the cause of death
 Headshot was responsible for the only cause of death
 He assumed Samuel was responsible for headshot
 Samuel – this would be a new intervening event
 He may have acted independently (and it was his act and not his brother that killed)
o Also didn’t believe Andries should go scot free
o He could then only be convicted of attempted murder
 This is a circumstance crime & not consequence crime
Only 2 judges (Botha & Nicholas) found Samuel guilty of murder
o 1 of these, Nicholas, agreed with Trengove that there was an abnormal event
 But this was irrelevant due to common purpose between brothers
Of the 3 judges that said a causal link between the conduct & death had to be established
o None found Samuel guilty
o Not enough proof BRD – Samuel acquitted of murder (3 judges to 2)
Trengove only judge – found abnormal event breaking the causal chain (headshot)
Jansen and Van Winsen said it was reasonable to find him guilty of murder
o Andries guilty despite the headshot
o 4/5 judges determined Andries guilty
Not all judges agreed & applied and focused on different to tests
o Each was justified though
R V BLAUE [1975] 3 ALL ER 446
 Related to victim’s emotional or religious characteristics
 (ENG case) Jacolyn (Jehovah’s witness) was stabbed by Blaue
 Blood transfusion would have saved her life – she refused (religious grounds) – died
o Blaue’s argument Jacolyn’s refusal would have broken the causal chain of her stabbing and her death
o The court rejected this
o Court stated = those who use violence on a victim must take their victims as they find them
 Means whole person not just the physical person
 Also, that religious beliefs are not unreasonable
 The act = stabbing was the cause of death and this is final
S V TEMBANI 2007 (1) SACR 355 (SCA)
 Related to improper medical intervention
 This case confirms the idea that a victim’s unreasonable refusal to follow advice is unreasonable
o And does break the chain
 Tembani shot his girlfriend in the chest and abdomen
o She was admitted to Tembisa hospital
o And died there 2 weeks later
o She would have survived if she received correct medical treatment during hospital stay
 Tembani said – bad medical treatment broke the chain of causation
o This depends on how bad the treatment received was
 Judge said (on point of departure) that bad medical treatment should not break the causal chain
o Where the wound inflicted is inflicted deliberately and potentially fatal
o This applies even if bad treatment is due to a doctor’s negligence
 In obiter – even gross negligence won’t exclude the assaulter’s liability
 Sub-standard medical treatment in SA = not abnormal (norm for most)
 In Judge’s view only bad treatment that would break the chain
 If professional acted in bad faith – deliberately hurt the injured victim further
o Snyman disagrees with bad treatment not breaking the chain
o Incorrect to assume SA people should expect bad medical services
EX PARTE DIE MINISTER VAN JUSTISIE IN RE S V GROTJOHN 1970 (2) SA 355 (A)
 Related to a victim’ suicide
 Grotjohn encourage his partially paralyzed and mentally ill wife to kill herself
o He even got and loaded the gun for her
 He was acquitted in the trial court = his wife’s suicidal act was independent and voluntary
 On appeal following LQ had to be answered
o If X instigates/assists/ or puts Y in a position to commit suicide
 Is X responsible for a crime? & what crime?
 Court = depends – if Y’s suicide was a completely INDP act no crime is committed
 If X helps Y commit crime – they may well have committed a crime
 Despite the voluntary nature of the suicide
 Where the suicide was not foreseen but reasonably foreseeable
o X maybe guilty of culpable homicide
 Where the suicide was foreseeable = X maybe guilty of murder
ROAD ACCIDENT FUND V RUSSELL 2001 (2) SA 34 (SCA)
 Related to a victim’ suicide
 Mr. Russel injured in a motor accident
o He committed suicide 18 months later
o LQ whether or not suicide broke the causal connection between the accident and his death
 Court = brain injury suffered in accident that changed his personality so badly that he was suicidal
o Even though deliberate the suicide was not a new intervening event
o It was direct result of the injuries sustained in the accident
 His wife was awarded her damages = the accident cause Russel’s suicide