© 2021 University of South Africa
All rights reserved
Printed and published by the
University of South Africa
Muckleneuk, Pretoria
Revised edition 1997
Further revised edition 1999
Further revised edition 2001
Further revised edition 2003
Further revised edition 2005
Further revised edition 2008
Further revised edition 2009
Further revised edition 2014
Further revised edition 2021
CRW2601/1/2021–2024
10020918
InDesign
MNB_Style
CONTENTS
Page
1
INTRODUCTION: Literature and Method of Study
1
LEARNING UNIT 1: Introductory topics
1.1 Criminal liability: a summary
1.2 Hints on answering problem-type questions
8
8
13
LEARNING UNIT 2: The principle of legality as entrenched in the Constitution
of the Republic of South Africa, 1996
2.1 Background
2.2 The concept of legality
2.3 Definition and contents of the principle
2.4 Conduct must be recognised by the law as a crime (ius acceptum)
2.5 Crimes should not be created with retrospective effect (ius praevium)
2.6 Crimes ought to be formulated clearly (ius certum)
2.7 Provisions creating crimes must be interpreted strictly (ius strictum)
2.8 The principle of legality in punishment
16
17
17
18
19
22
23
23
26
LEARNING UNIT 3: The act
3.1 Background
3.2 Introduction
3.3 The act
3.4 Omissions
29
30
30
30
36
LEARNING UNIT 4: The definitional elements and causation
4.1 Background
4.2 The definitional elements
4.3 Causation
45
46
46
47
LEARNING UNIT 5: Unlawfulness I
5.1 Background
5.2 The meaning of "unlawfulness"
5.3 Private defence
61
62
62
65
LEARNING UNIT 6: Unlawfulness II
6.1 Background
6.2 Necessity
6.3 Consent 6.4 Presumed consent
6.5 Obedience to orders
6.6 Official capacity
6.7 Excursus: Disciplinary chastisement
76
77
77
83
88
89
90
91
93
2
6.8
Excursus: Triviality
(iii)
CRW2601/1/2021–2023
LEARNING UNIT 7: Culpability and criminal capacity
7.1
Background
7.2 The requirement of culpability in general
7.3 Criminal capacity
The defence of non-pathological criminal incapacity
96
97
97
100
103
LEARNING UNIT 8: Criminal capacity: mental illness and youth
8.1 Background
8.2 Mental illness
8.3 Youth
108
109
109
115
7.4
LEARNING UNIT 9: Intention I
118
9.1 Background
119
9.2 The two elements of intention
119
9.3 Definition of intention
120
9.4 The different forms of intention
120
9.5 The test for intention is subjective
124
9.6 Proof of intention – direct or indirect
125
9.7 Knowledge, as an element of intention, must cover all the requirements of crime 126
9.8 Intention directed at the circumstances included in the definitional elements
127
9.9 Intention with regard to unlawfulness
127
9.10 The distinction between motive and intention
128
LEARNING UNIT 10: Intention II: mistake
10.1 Mistake nullifies intention
10.2 Mistake need not be reasonable
10.3 Mistake must be material
10.4 Mistake relating to the chain of causation
10.5 The going astray of the blow (aberratio ictus) does not constitute a mistake
10.6 Mistake relating to unlawfulness
130
131
132
132
134
136
141
LEARNING UNIT 11: Negligence
11.1 Background
11.2 Objective test
11.3 Definition of negligence
11.4 Abbreviated way of referring to negligence
11.5 Discussion of the definition of negligence
11.6 Subjective factors
11.7 Exceeding the bounds of private defence
148
149
150
150
150
151
155
156
LEARNING UNIT 12: The effect of intoxication and provocation on liability
12.1 Background
12.2 Introduction
12.3 Involuntary intoxication
12.4 Voluntary intoxication
12.5 Development of the defence of voluntary intoxication
12.6 Intoxication and culpable homicide
12.7 The effect of intoxication on punishment
12.8 Study hint
12.9 The effect of provocation on criminal liability
160
161
161
161
162
163
171
172
172
174
(iv)
LEARNING UNIT 13: Disregard of the requirement of culpability and the criminal
liability of corporate bodies
13.1 Disregard of the requirement of culpability
13.2 Criminal liability of corporate bodies
176
177
178
LEARNING UNIT 14: Participation I: introduction and perpetrators
14.1 Background
14.2 Introduction
14.3 Perpetrators
181
182
182
185
LEARNING UNIT 15: Participation II: accomplices and accessories after the fact
15.1 Background
15.2 Accomplices
15.3 Accessories after the fact
200
201
201
203
LEARNING UNIT 16: Attempt, conspiracy and incitement
16.1 Background
16.2 Attempt
16.3 Conspiracy
16.4 Incitement
207
208
208
217
218
ADDENDUM A
Construction of criminal liability
221
ADDENDUM B
Table of defences and their effect
222
(v)
CRW2601/1
(vi)
LITERATURE AND METHOD OF STUDY
Contents
1. General
2. Course outcomes
3. Subdivision of criminal law into two modules
4. Literature
5. Method of study
Glossary
1. GENERAL
Welcome to the first module in Criminal Law. We trust that you will enjoy your study of this
module. Criminal law is one of the most interesting and topical law subjects to study. Our
aim is to assist you as much as we can in mastering this module.
3
In this introductory chapter, we draw your attention to the subdivision of criminal law into
two modules, and to the books you will need for your studies. We also give you advice on
how to study.
4
2. COURSE OUTCOMES
This course should enable you to
5
y identify and describe the arguments that may serve as a justification for convicting and
sentencing a person for a crime
y analyse and solve criminal law-related problems by identifying, describing and applying
the relevant legal principles
3. SUBDIVISION OF CRIMINAL LAW INTO TWO MODULES
Criminal Law consists of two modules, namely CRW2601 and CRW2602. This study guide deals
with the first module, CRW2601. This module deals with the general principles of criminal
law. The second module, CRW2602, deals with specific crimes.
6
You will not understand the content of the CRW2602 module unless you have a proper
understanding of the general principles of criminal law discussed in the CRW2601 module.
Therefore, you are advised to study CRW2601 before you start studying CRW2602.
7
4. LITERATURE
y Prescribed texts
There are two prescribed texts for this module, namely
8
1. Snyman CR Snyman’s Criminal Law 7 ed (updated by SV Hoctor) (LexisNexis, Durban 2020)
2. Case Law Reader for CRW2601
1
CRW2601/1
The same book that is prescribed for the second module in Criminal Law is prescribed for
this module. An Afrikaans edition of Snyman's work, entitled Snyman CR Strafreg 6 ed (2012),
published by LexisNexis, is also available for Afrikaans-speaking students.
9
10
The Case Law Reader contains all the prescribed cases and is provided to you upon registration.
y Recommended books
There are no recommended books for this module.
11
y Use of prescribed books
Snyman's Criminal law contains a discussion of both general principles and specific crimes
and, therefore, covers the syllabi of both modules in Criminal Law.
12
The second prescribed work, namely the Case Law Reader for CRW2601, is, as the name indicates,
a collection of the most important judgments on criminal law. Court judgments constitute
one of the most important sources, not only of criminal law, but also of all branches of the
law. In order to study criminal law properly, it is necessary to consult the law reports in which
these judgments are published. Few students studying at UNISA have regular access to a
law library. The Case Law Reader for CRW2601 is prescribed to enable all students to read the
relevant judgments in this branch of the law.
13
We wish to emphasise that you are expected to read more than merely the study guide, and
that you should consult the prescribed book on a specific topic, especially if you find that
you do not clearly understand certain aspects of a particular topic in the study guide. When
read a topic from the prescribed book, you need take note only of the text itself, that is, you
need not also consult, study or read the footnotes as well, unless we draw your attention to
one or more footnotes.
14
For the purposes of the examination, you should, however, use the study guide as your
primary source.
15
y Other works on criminal law
Apart from the works already mentioned above, there are also a number of other works on
criminal law. We merely draw your attention to the following two works:
16
1. Burchell Principles of Criminal Law 5 ed (Juta 2016)
2. Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa 3
ed (Oxford University Press 2018)
17
You need not buy either of these books, since they are not recommended works.
5. METHOD OF STUDY
y Subdivision of study material in study guide
You will notice that the discussion of the material in the study guide is subdivided into 16
study units. A study unit is a unit or section of the syllabus which deals with a certain topic.
You can divide the time you have at your disposal (from the time you enrol until the time you
write your examination) into 16 time units and then study one study unit per such time unit.
18
2
Please find below the entire course contents at a glance. As you will see, there are four parts
in the course. Under each part, various topics with crimes listed under them appear in the
different study units.
19
y Contents of study units
Every study unit is normally subdivided as follows:
20
1.
2.
3.
4.
5.
a table of contents of the material discussed in the study unit
a list of learning outcomes you should keep in mind when studying the study unit
a short paragraph serving as an introduction or background to the discussion that follows
the actual exposition of the topic covered in the study unit
a glossary, containing a list of certain important words and phrases from foreign languages
(mostly Latin), along with their translations
6. a concise summary of the most important principles as set out in the topic of that particular
study unit
7. a number of "test yourself" questions
The exposition of the topic may contain some interesting points of discussion, and activities
and feedback. An "Activity" takes the form of questions that you should try to answer by
yourself before looking at the answers in the "Feedback".
21
y What the icons represent
An icon is a small picture or other graphic symbol that conveys a certain message. We use
the following icons in this study guide:
22
3
CRW2601/1
Icon
23
25
Description
24
Activity. This icon refers to activities that you must do to develop a
deeper understanding of the learning material.
26
27
Beware of the following typical mistake often made by students!
28
29
Feedback. This icon indicates that you will receive feedback on your
answers to the self-assessment activities.
30
31
Further Reading. This icon indicates interesting texts for further reading. Please note these texts are not prescribed, and merely provided
as a matter of interest.
32
33
Hint. This icon ndicates a hint or advice on how to study or answer a
question in the examination.
34
35
Hot Topic. Consider this interesting discussion. What is your opinion?
36
37
Learning outcomes. This icon indicates which aspects of the particular
learning unit you have to master. You will need to demonstrate that you
have mastered these aspects.
38
39
NB/Take note. This icon indicates information of particular importance.
40
41
Read. This icon will direct you to read certain sections of the prescribed
book for background information.
42
43
Self-assessment. When you see this icon, you will be required to test
your knowledge, understanding and application of the material you have
just studied.
44
45
Study. This indicates the relevant sections of the prescribed book or
the study guide that you need to study and internalise.
46
4
If a sentence/s is/are printed against a grey (shaded) square background (also called a "screened
block"), the sentence/s contain/s a definition that you should know so well that you will be
able to write it down in the examination.
48
We expect you to know the definitions of certain concepts and crimes for the examination.
These definitions usually consist of only one sentence (although the sentence may, admittedly, sometimes be rather long). By "know", we mean that you must be able to give us the
definition in the examination substantially, as it appears in the study guide. The best would
be to try and memorise the definition, but you are also free to give us your own version of it.
However, experience has taught us that students who do not memorise the definition, but
rather try to paraphrase it in their own words, often lose marks because of deficiencies in their
version of the definition. To assist you in identifying the definitions that you should master
for the examination (as explained above), we have "screened" them so that they stand out.
49
We will therefore not warn you repeatedly that you should know certain definitions well
for the examination. You should just watch out for the "screened frame": then you must be
aware that you should know the definition appearing in the frame so well that you will be
able to give it in the examination.
50
y Important advice on how to study
At the risk of preaching to the converted, we are taking the liberty of giving you a short pep talk.
51
– Students of criminal law are sometimes inclined to underestimate the subject because
it deals with human actions that are concrete and often spectacular, such as stealing,
killing, raping, kidnapping or destroying. We wish to warn you against underestimating this subject. Some of the concepts of criminal law are among the most
difficult to grasp in the field of law. Don't think that because you regularly read about
murder, rape, robbery or other crimes in the newspapers that you can afford to read
the study guide only superficially, and to rely in the examination only on the type of
broad general knowledge that the average person, who regularly reads newspapers,
would have of criminal law.
– Try to understand the principles of criminal law, such as causation, private defence
and intention so that you can apply them to concrete cases. Merely memorising page
upon page of the study guide without understanding the principles underlying the
topics discussed is of little use. Only a proper understanding of the basic principles
will enable you to answer the so-called problem-type questions satisfactorily in the
examination. (A "problem-type" question is one in which you are not asked directly
to discuss a particular topic, but in which we give you a set of facts and expect you
to state whether one of the persons mentioned in the set of facts has committed a
particular crime or whether he or she can rely on a particular defence. You must also
be able to substantiate your answers.)
– Furthermore, an old but sound piece of advice is that you should not move on to a
new principle until you have mastered the preceding one on which it is based.
– We advise you to make your own notes or summaries (perhaps even in "telegram"
style) while studying the specific topics.
– Although it is important that you understand the principles underlying a particular
topic, a knowledge of only the principles (or framework of a topic) is insufficient; you
must also be able to state some particulars regarding the principle (such as giving
illustrations of its application, the authority on which the principle is based, or
possible exceptions thereto).
5
CRW2601/1
– Students often ask us how important it is to remember the names of cases. Let's clarify
this matter here: it would be an impossible task to memorise the names of all cases
referred to in your lectures, and we do not expect you to do so. However, it is a fact
that decisions are some of a law student's "best friends", and since it is a good policy
not to forget the names of your best friends, we would advise you to concentrate
on remembering the names of the most important, leading cases. As we progress
through the course, we will draw your attention to some of the most important decisions. You are also advised to underline the names of cases when referring to them in
the examinations. This will help the examiner to follow your submissions.
However, please do NOT waste any valuable time attempting to memorise the case
references. A case reference is the set of dates, letters and numbers following the name
of the case, for example 1966 (2) SA 269 (A). In this reference, 1966 refers to the year in
which the judgment was reported (i.e. published), the (2) refers to the volume number
of the particular year, the 269 refers to the page in the book where the judgment begins,
and the (A) refers to the division that heard the case. It is absolutely unnecessary, and
also a waste of time, to try to memorise these numbers and letters. We do not expect
you to know them. Note that even if you fail to remember the name of an important
case in the examination, you can simply state: "It has been decided" or "According to
a decision", etc. Our primary aim in the examination is not to test your memory, but
your comprehension and insight – but do bear in mind that proper comprehension
and insight are also based on a knowledge of facts.
52
– In the course of the year, we will be issuing a number of tutorial letters. Please bear
in mind that these tutorial letters form an important part of the study material
that you are required to master; sometimes they may even amend the study guide.
Therefore, do not ignore tutorial letters!
– We wish to warn you not to neglect the last portions of the study guide. We often
find that in the examination, students do reasonably well in questions dealing with
topics that are discussed in the first part of the study guide, but often prove to have
only a very superficial knowledge – or none at all – of topics discussed towards the
end of the study guide. You must study the whole guide – including topics that are
discussed at the end. Your knowledge of some of these last topics may make the difference between failing and passing the examination!
y General principles and specific crimes
A study of criminal law comprises a study of both the general principles of criminal law and
the most important specific crimes. By "general principles of criminal law", we mean those
rules that normally apply to all, or at least most, crimes, for example rules about the meaning
of concepts such as "intention" or "negligence", or rules about when an accused person may
rely on defences such as insanity, intoxication, provocation or self-defence.
53
A study of the specific crimes comprises an analysis of the different specific crimes by identifying and critically discussing the different requirements applicable to each specific crime.
54
In this module, we discuss only the general principles of criminal law. In the second module
in Criminal Law, we deal with certain remaining general principles (namely the principles
relating to participation in crime and attempts to commit crime), followed by a discussion
of the most important specific crimes.
55
6
In the second module, the crimes of murder and culpable homicide will be dealt with.
However, in the first module, these two crimes are occasionally referred to as examples to
illustrate the general principles. The reason for this is that the distinguishing factors between
these two crimes are intention and negligence, and these two crimes are used to illustrate
the difference between crimes requiring intention and those crimes for which negligence is
required. To follow the discussion of the general principles from the beginning, it is therefore
necessary to know what the definitions of these two crimes are.
56
57
Murder is the unlawful, intentional causing of the death of another human being.
58
Culpable homicide is the unlawful, negligent causing of the death of another human being.
The only difference between these two crimes, therefore, is that intention is required for the
one and negligence for the other.
59
y Abbreviations
When, in the course of this study guide, we refer to your prescribed handbook, that is, Snyman’s Criminal Law, we will identify this book as Criminal Law. If we refer to the prescribed
Criminal Law Reader, we will indicate this book merely as Reader. In this study guide, all references to Criminal Law are to the 7th edition of this book (2020).
60
With regard to the mode of citation of cases, the following method is used: in accordance
with modern usage, we do not cite the full official name of cases, for example S v Williams en
'n Ander 1970 (2) SA 654 (A), but simply the name, followed by the case reference – Williams
1970 (2) SA 654 (A). This is the modern "streamlined" method of citing cases.
61
In the discussions that follow, we will often refer to the perpetrator or accused simply as X,
and to the complainant or victim of the crime as Y.
62
63
We often use the Latin words supra and infra. Supra means "above" and infra means "below".
y Language: equal treatment of genders
In our discussions in the guide, we try to adhere to the principle of equal treatment of the
genders. We do this in the following way: In study units beginning with even numbers, the
female form is used, while in all study units beginning with uneven numbers, the male form
is used. There are necessarily certain exceptions to this rule. In cases such as the following,
we do not change the genders:
64
– in the descriptions of sets of facts in reported decisions
– where we quote legislation (which is, for the most part, drawn up in the masculine
form) directly
– in the explanatory notes to existing drawings (which, for practical reasons, unfortunately cannot be changed) depicting males
GLOSSARY
supra
65
67
infra
above
66
below
68
7
CRW2601/1
LEARNING UNIT 1
Introductory topics
Content
Learning outcomes
1.1 Criminal liability: a summary
1.1.1 General
1.1.2 The four elements of criminal liability
1.1.3 Sequence of investigation into presence of elements
1.2 Hints on answering problem-type questions
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• broadly outline the four elements of criminal liability and the logical sequence of investigation into these elements
• know what the four general elements of, or requirements for, criminal liability are
1.1
CRIMINAL LIABILITY: A SUMMARY
1.1.1
General
The discussion that follows is aimed at giving you a very concise summary of the first part
of the study guide. When investigating the various crimes, we find that they all have certain
characteristics in common. Before a person can be convicted of any crime, the following
requirements must be satisfied:
70
8
The very first question to be asked in determining a person's criminal liability is whether the
type of conduct forming the basis of the charge is recognised in our law as a crime. A court
may not convict a person and punish him merely because it is of the opinion that his conduct
is immoral or dangerous to society, or because, in general terms, "the person deserves" to be
punished. On the contrary, it must be beyond dispute that X's alleged type of conduct is recognised by the law as a crime. This very obvious principle is known as the "principle of legality".
71
Although this requirement must be borne in mind, it is never regarded as an element of a
crime in the sense that the accused, by his conduct and subjective attributes, must comply
with this requirement. This consideration is underlined by the fact that in more than 99 per
cent of criminal cases, the accused is charged with a crime that is so well-known (e.g. assault,
theft, culpable homicide) that the court will not waste its time investigating whether, in our
law, there is such a crime as the one with which the accused is being charged. Only in fairly
exceptional cases is it necessary for the court to study, for example, a statute in order to ascertain whether what the accused is charged with really constitutes a crime. This is another
reason the principle of legality is not regarded as an "element" of a crime.
72
73
We will now proceed to consider the four elements of a crime.
1.1.2
The four elements of criminal liability
1. Act or conduct
Assuming that the law regards the conduct as a crime, the first step in enquiring whether
X is criminally liable is to enquire whether there was conduct on the part of X. By "conduct", we mean an act or an omission. Since the punishment of omissions is more
the exception than the rule, this requirement of liability is mostly referred to as
the "requirement of an act".
74
The word "act", as used in criminal law, does not correspond in all respects with the ordinary
everyday meaning of this word; more particularly, it should not be treated as synonymous
with a muscular contraction or bodily movement. It should rather be treated as a technical
term that is wide enough in certain circumstances to include an omission to act.
75
For the purposes of criminal law, conduct can lead to liability only if it is voluntary. Conduct is voluntary if X is capable of subjecting his bodily or muscular movements to his
will or intellect. For this reason, the bodily movements of, for example, a somnambulist
(sleepwalker) are not considered by the law to amount to an "act".
76
An omission (that is, a failure by X to act positively) can lead to liability only if the law
imposed a duty on X to act positively and X failed to do so.
77
2. Compliance with the definitional elements of the crime
The following general requirement for criminal liability is that X's conduct must comply
with the definitional elements of the crime in question.
78
79
What does "the definitional elements of the crime" mean? It is the concise definition of
the type of conduct and the circumstances in which that conduct must take place in
order to constitute an offence. By looking at these definitional elements, we are able to
see how one type of crime differs from another. For example, the definitional elements
of the crime of robbery are "the violent removal and appropriation of movable corporeal
property belonging to another".
80
9
CRW2601/1
Every particular offence has requirements that other offences do not have. A study of the
particular requirements of each offence is undertaken in the second module. The requirement for liability, with which we are dealing here, is simply that X's conduct must comply
with or correspond to the definitional elements; to put it differently, it must be conduct
that fulfils the definitional elements, or by which these definitional elements are realised.
81
3. Unlawfulness
The mere fact that the act complies with the definitional elements does not necessarily
mean that it is also unlawful in the sense in which this word is used in criminal law. If a
policeman catches a criminal on the run by knocking him to the ground in a tackle, his
act is not unlawful and he will, therefore, not be guilty of assault, despite the fact that
the act complies with the definitional elements of the crime of assault.
82
"Unlawful", of course, means "contrary to law", but "law" in this context means not merely
the rule contained in the definitional elements, but the totality of the rules of law, and
this includes rules that, in certain circumstances, allow a person to commit an act that
is contrary to the letter of the legal prohibition or norm. In practice, there are a number
of well-known situations where the law tolerates an act that infringes the letter of the
definitional elements. These situations are known as grounds of justification. Well-known
grounds of justification are private defence (which includes self-defence), necessity, consent, and official capacity. In the example above, the act of the policeman is justified by
the ground of justification known as official capacity.
83
4. Culpability
The following, and last, requirement that must be complied with is that X's conduct must
have been culpable. The culpability requirement means that there must be grounds
upon which X may personally be blamed for his conduct. Here the focus shifts from the
act to the actor, that is, X himself – his personal abilities and knowledge, or lack thereof.
84
The culpability requirement comprises two questions or two "sub-requirements".
85
The first of these sub-requirements is that of criminal capacity (often abbreviated merely
to "capacity"). This means that at the time of the commission of the act, X must have had
certain mental abilities. A person cannot legally be blamed for his conduct unless he is
endowed with these mental abilities. The mental abilities X must have are
86
1. the ability to appreciate the wrongfulness of his act (i.e. to distinguish between
"right" and "wrong") and
2. the ability to act in accordance with such an appreciation
Examples of categories of people who lack criminal capacity are mentally ill ("insane")
persons and young children.
87
The second sub-requirement (or "leg" of the culpability requirement) is that X's act must
be either intentional or negligent. Intention is a requirement for most offences, but
there are also offences requiring only negligence.
88
Briefly, then, we can say that the four general requirements for a crime are the following:
89
1.
2.
3.
4.
conduct
that complies with the definitional elements of the crime
and that is unlawful
and culpable
10
1.1.3
Sequence of investigation into presence of elements
It is of the utmost importance to bear in mind that the investigation into the presence of the
four requirements for, or elements of, liability set out above must follow a certain sequence,
namely the sequence in which the requirements were set out above. If the investigation
into whether there was (voluntary) conduct on the part of X reveals that there was, in fact,
no such conduct, it means that X is not guilty of the crime in question, and the matter is
concluded. It is then unnecessary to investigate whether the further requirements, such as
unlawfulness and culpability, have been complied with.
90
An investigation into whether the conduct complied with the definitional elements is necessary only when it is clear that the conduct requirement has been complied with. Again, only
if it is clear that the conduct has complied with the definitional elements is it necessary to
investigate the question of unlawfulness, and only if the latter requirement has been complied with is it necessary to investigate whether X's act was also culpable. An enquiry into
a later requirement (in terms of the sequence described above) therefore presupposes the
existence of the previous requirements.
91
The basic rule relating to the sequence of the requirements may be compared to the story of
a boy whose kite got stuck at the tip of a very high branch of a tree: The boy was hopelessly
too short to reach up with his hands to the branch where the kite had got stuck. In order
to retrieve the kite, he first moved a table into position just beneath the branch. Secondly,
he placed a chair on the table. Thirdly, he climbed onto the chair, armed with a long stick.
Fourthly, he reached out with the stick to the kite, poked at it, and in this way succeeded in
freeing the kite from the branch. (Consult the left-hand side of the illustration below.)
92
The enquiry into criminal liability proceeds along comparable lines. Drawing the conclusion
that a person is guilty of a crime is like retrieving the kite. The kite represents criminal liability.
The table (the first or bottom agent) represents the requirement of an act. The chair (second
agent) represents the requirement that there must be compliance with the definitional elements. The boy (third agent) represents the unlawfulness requirement and the stick (fourth
agent) represents the culpability requirement.
93
11
CRW2601/1
94
Successfully reaching out with the stick towards the kite presupposes the existence of all
four objects, or "agents", needed to reach it. If the first "agent", namely the table, cannot be
found or does not exist, it is of no avail that, say, the fourth agent (the stick) is waved about
in an effort to free the kite. If we apply this metaphor to the principles of criminal liability, it
follows that it is a waste of time to enquire whether X had the intention to commit an offence (fourth requirement) if it transpires that there was not even an act (first requirement)
on his part.
95
Thus the enquiry must always start from the bottom and proceed upwards, not the other
way around. Every "agent" (table, chair, boy, stick) rests upon that or those "agents" below it
(except, of course, the one right at the bottom, namely the table). The moment it becomes
clear that any one of the four elements is missing (that is, has not been complied with), it
follows that there is no criminal liability (that is, the kite cannot be retrieved) and it becomes
unnecessary to enquire into the existence of any possible further elements or requirements
(that is, "agents" that are above them).
96
12
Activity 1.1
Let's apply this simple principle to a concrete set of facts: Assume X is charged with having assaulted Y. The evidence relied upon by the prosecution to prove the charge reveals
that one night while X was walking in his sleep, he trampled upon Y, who happened to
be sleeping on the floor. Has X committed assault?
1
Feedback
The answer is obviously "no", on the following grounds: Because X was walking in his sleep,
his act was not voluntary – in other words, while sleepwalking, he was not able to subject
his bodily movements to his will or intellect. Because there was no act, he is not guilty of
assault. (Or, to make use of the metaphor in the illustration above, there was no table for the
boy to use and, therefore, any attempt by him – even with the aid of a chair and a stick ― to
retrieve hs kite would be fruitless.) It is unnecessary to enquire whether, for example, X's act
was unlawful or whether he acted with intention (culpability). From a systematic point of
view, it would be unsatisfactory – and proof of unimpressive legal thinking – to say that X
escapes liability because he lacked the intention to assault. Such an argument presupposes
that there was a voluntary act on the part of X – which is patently incorrect.
1.2
HINTS ON ANSWERING PROBLEM-TYPE QUESTIONS
The purpose of asking problem-type questions in this module is to test your understanding
of the general principles of criminal liability, primarily (but not exclusively) the four elements
of criminal liability: the act, compliance with definitional elements, unlawfulness and culpability (see SG 1.1). Firstly, you must be able to identify the element that is called into question
in the factual scenario. This requires knowledge and understanding of the definitions of
concepts, such as the requirement of a voluntary act or dolus eventualis, which are provided
in grey blocks. You have also been provided with a sequence of investigation into the
presence of the elements (SG 1.1.3) to enable you to identify the elements correctly and
speedily, and to focus on discussing the legal principles that are relevant to the question.
97
The second step in answering a problem-type question is to discuss the legal principles that
are relevant to providing the answer to the problem. Most of the legal principles discussed
in this module come from court decisions (case law). You must therefore refer to (a) decided case(s) whenever a legal principle is stated. You are reminded that even if you fail to
remember the name of a case, you can simply state: "It has been decided" or "According to
a decision", when stating the principle.
98
Please note, however, that the discussion of an incorrect principle will not be
credited, irrespective of whether the case reference (name) is appropriate. In other
words, referring to the correct case name will not earn you a mark if it is done to support an inappropriate legal principle. Students who do this indicate to the lecturer that
they do not understand what the cited case actually decided.
13
CRW2601/1
The third step in answering a problem-type question is to apply the relevant legal principles
to the facts of the problem. Students often combine the second and third steps when answering problem-type questions. In other words, they discuss the principle(s) while applying it/
them to the facts. Doing this is not wrong, but the chances of omitting a relevant principle
(if there is more than one) are greater when adopting this approach. To minimise this possibility, we would advise you to separate the second and third step. Another advantage of
discussing the legal principle(s) before applying it/them to the facts is that you can more
easily identify the relevant facts at the stage of discussing the principle(s). This will enable
you to address as many relevant facts as possible, and will prepare you for a more in-depth
analysis at the stage of application.
99
The final step in answering a problem-type question is to provide a conclusion to the problem. Please ensure that you have addressed the question(s) that you have been asked. If, for
example, the question requires you to determine the criminal liability of X on a charge of
murder, then your conclusion should state either "X is criminally liable" or "X is not criminally
liable on a charge of murder". If the question requires you to determine whether X caused
Y's death, then your conclusion should state either "X caused Y's death" or "X did not cause
Y's death", etc. Please also note that in order for your conclusion to have any basis, it must
be a deduction based on your reasoning.
100
Hint
Finally, if a question asks you to determine "criminal liability", please bear in mind that a
determination of criminal liability presupposes the existence of all four elements of liability. Therefore, if the element under discussion is found to be lacking, then, following the
sequence of investigation for criminal liability, we expect you to expressly indicate that
it is unnecessary to investigate whether the further requirements have been complied
with before concluding that "X is not criminally liable". Alternatively, should you find that
the element in question is present, we expect you to expressly assume the presence of
the other elements before concluding that "X is criminally liable".
SUMMARY
1. The four elements of criminal liability are
a. act or conduct
b. compliance with definitional elements
c. unlawfulness
d. culpability
2. The investigation into the presence of the four elements of liability follows a certain
sequence, namely the sequence in which they were mentioned in (1) above.
Further reading
For more information on the elements of liability, read:
• Burchell Principles of Criminal Law (2016) 51–63.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 24–28.
14
Self-assessment
1
(1) Name the four elements of criminal liability.
(2) Briefly discuss each of the four elements of criminal liability.
(3) Should the investigation into the presence of the four elements of liability follow a prescribed sequence? Explain.
15
CRW2601/1
LEARNING UNIT 2
The principle of legality as entrenched in the
Constitution of the Republic of South Africa, 1996
Contents
Learning outcomes
2.1 Background
2.2 The concept of legality
2.3 Definition and contents of the principle
2.3.1 Definition
2.3.2 Rules embodied in the principle
2.4 Conduct must be recognised by the law as a crime (ius acceptum)
2.4.1 Common-law crimes
2.4.2 Statutory crimes (i.e. crimes created in Acts of parliament)
2.5 Crimes should not be created with retrospective effect (ius praevium)
2.6 Crimes ought to be formulated clearly (ius certum))
2.7 Provisions creating crimes must be interpreted strictly (ius strictum)
2.8 The principle of legality in punishment
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• evaluate the validity of any common-law or statutory rule (including those relating to
punishment) with reference to the rules embodied in the principle of legality
• demonstrate your ability to apply the principle of legality to statutory provisions by
determining whether a particular statutory provision purporting to create a crime
contains a legal norm, a criminal norm and a criminal sanction
16
101
2.1
BACKGROUND
Intervention by the criminal law may be traumatic for a person accused of a crime. It can
easily happen that criminal law is turned into a tool of suppression or oppression, as occurred during the Middle Ages. It is therefore important that mechanisms exist to protect
the rights of the individual against abuse by organs of the state. The principle of legality
plays an important role in this regard, as the principle is based on principles of constitutional
democracy and fairness.
102
2.2
THE CONCEPT OF LEGALITY
(Reader 1-22)
103
In determining whether a person is criminally liable, the first question to be asked is whether
the type of conduct allegedly committed by such person is recognised by the law as
a crime. Certain conduct may be wrong from a moral or religious point of view, yet may not
be prohibited by law. Again, even if it is prohibited by law, it does not necessarily follow that
it is a crime: it may lead only to a civil action (i.e. an action or court case in which one private
party claims damages from another party), or it may result only in certain administrative
measures being taken by some authority (where, for example, a local authority orders me to
break down a wall that I have constructed on my property in such a way that it contravenes
the local building regulations). Not every contravention of a legal rule constitutes a crime.
The mere breach of a contract, for example, does not necessarily constitute a crime. It is only
if a certain kind of conduct is defined by the law as a crime that there can be any question
of criminal liability for that type of conduct.
104
It is this very specific aspect of a person's conduct that lies at the root of the principle of
legality. The principle of legality is also known as the nullum crimen sine lege principle. This
Latin expression means ''no crime without a legal provision". The principle of legality is
contained in section 35(3)(l) of the Constitution of the Republic of South Africa, 1996
(the Constitution). The provisions of this section will be set out in the discussion that follows.
105
17
CRW2601/1
2.3
DEFINITION AND CONTENTS OF THE PRINCIPLE
2.3.1
Definition
A definition of the principle of legality, embodying its most important facets, can be formulated as follows:
106
An accused may
1. not be convicted of a crime –
a. unless the type of conduct with which she is charged has been recognised
by the law as a crime
b. in clear terms
c. before the conduct took place
d. without it being necessary to interpret the words in the definition of the
crime broadly in order to cover the accused's conduct; and
if convicted, not be sentenced unless the sentence also complies with the four
requirements set out above under 1(a) to (d).
2.3.2
Rules embodied in the principle
If we analyse the principle of legality, we find that it, in fact, embodies five rules. In order to
facilitate reference to the different rules, we will give each of these rules a brief Latin label.
These five rules are the following:
107
1. A court may find an accused guilty of a crime only if the kind of act performed is
recognised by the law as a crime – in other words, a court itself may not create a crime.
This is the ius acceptum rule.
2. A court may find an accused guilty of a crime only if the kind of act performed was
recognised as a crime at the time of its commission. This is the ius praevium rule.
3. Crimes ought not to be formulated vaguely. This is the ius certum rule.
4. A court must interpret the definition of a crime narrowly rather than broadly. This is
the ius strictum rule.
5. After an accused has been found guilty, the above-mentioned four rules must also be
applied when it comes to imposing a sentence; this means that the applicable sentence
(regarding both form and extent) must already have been determined in reasonably clear terms by the law at the time of the commission of the crime, that a court must
interpret the words defining the punishment narrowly rather than broadly, and that
a court is not free to impose any sentence other than the one legally authorised. This
is the nulla poena sine lege rule, which can be further abbreviated to the nulla poena rule.
Actually, all the different aspects of the principle of legality can be traced back to one fundamental consideration; namely that the individual ought to know beforehand precisely what
kind of conduct is criminal, so that she may conduct herself in such a way that she will not
contravene the provisions of the criminal law.
108
There is a connection between the principle of legality and a democratic form of government: one of the reasons a judge should not be empowered to create crimes herself, or to
extend the field of application of existing crimes, is because parliament, as the gathering
of the community's elected representatives, is best suited to decide (after examination and
109
18
discussion) which acts ought to be punishable according to the general will of the people. In
contrast, the judge's function is not to create law, but to interpret it. Naturally, this relationship between legality and a democratic form of government implies that there must be a
parliament representing the entire population, as well as regular (not a one-off event), free
(free from intimidation) and fair elections to ensure that the representatives in parliament
genuinely reflect the (sometimes changing) will of the people.
In the discussion that follows, each of the five rules embodied in the principle will be analysed.
For the sake of convenience, we will often refer to these rules by their brief Latin labels given
above. The following diagram sets out the classification of the rules and sub-rules:
110
2.4
CONDUCT MUST BE RECOGNISED BY THE LAW AS A
CRIME (IUS ACCEPTUM)
In a country in which the criminal law is codified, the effect of the principle of legality is that
only conduct that falls within the definition of one of the crimes expressly mentioned in
the criminal code is punishable. South African criminal law is not codified. Although many
crimes are created by statute, some of the most important crimes, such as murder and assault, are not made punishable or defined in any Act. They are simply punishable in terms
of the common law.
111
However, the fact that our criminal law is not codified does not mean that the principle of
legality has no function in our law. In South African criminal law, the role of the principle of
legality is the following: before a court can convict somebody of a crime, it must be clear
that the kind of conduct with which she is charged is recognised as a crime in terms of either common law or statutory law. If this is not the case, a court cannot convict the person,
even though the judge or magistrate is of the opinion that, from a moral or religious point
of view, the conduct ought to be punishable. A court may not create a crime; only the legislature may do this.
112
The rule described above may be described as the ius acceptum rule. The Latin word ius means
"law" and "acceptum" means "which has been received". A free translation of ius acceptum
would read: "the law as it has been received up to date". In South Africa, the ius acceptum
refers not only to the common law, but also to the existing statutory law.
113
19
CRW2601/1
The ius acceptum principle is not referred to expressly in the Constitution. However, the provisions of section 35(3)(l) imply the existence of the ius acceptum rule. Section 35(3)(l) expresses
the ius praevium rule, which will be explained in the discussion of that principle below. Briefly,
this section provides that every accused has a right to a fair trial, which includes the
right not to be convicted of an offence in respect of an act or omission that was not
an offence at the time it was committed. However, this formulation of the ius praevium
rule implies that the ius acceptum rule should also be respected: If a court may not find a
person guilty of an act or omission that was not an offence at the time it was committed (ius
praevium), it obviously implies that a court does not have the power to create a crime (ius
acceptum). In other words, if a court had the power to create crimes, it would mean that a
court also has the power to convict a person of a crime, even though the accused's act did
not constitute a crime at the time it was performed.
114
It is convenient to discuss the application of this rule under two headings: firstly, the application of the rule to common-law crimes and, secondly, its application to statutory crimes.
115
2.4.1
Common-law crimes
Where there is no provision of the common law declaring certain conduct to be a crime, the
courts have generally held that there can be no crime – and therefore no punishment. In M
1915 CPD 334, Kotze J declared: "We do not possess the power of creating offences upon
the ground that in our opinion, they are contrary to good morals." Our courts are not the
guardians of morals. If there is a need to make punishable any conduct that may be viewed
as immoral or dangerous to society, it is the task of the legislature to declare such conduct
punishable, if it wishes to do so. A court has no legislative powers.
116
This point was emphasised by the Constitutional Court in Masiya v Director of Public Prosecutions 2007 (2) SACR 435 (CC). The court (at para 30) stated that in a constitutional democracy
such as ours, the legislature, and not the courts, has the major responsibility for law reform,
and that the delicate balance between the functions and powers of the courts, on the one
hand, and those of the legislature, on the other hand, should be recognised and respected.
117
2.4.2
Statutory crimes (i.e. crimes created in Acts of parliament)
If parliament wishes to create a crime, an Act purporting to create such a crime will best comply with the principle of legality if it expressly declares:
118
1. that that particular type of conduct is a crime, and
2. what punishment a court must impose upon a person convicted of such a crime.
Sometimes, however, it is not very clear from the wording of an Act whether a section or
provision of the Act has indeed created a crime or not. In such a case, the function of the
principle of legality is the following: a court called upon to interpret such a section or provision should assume that a new crime has been created only if it appears unambiguously
from the wording of the Act that a new crime has, in fact, been created. If the Act does not
expressly declare that the conduct is a crime, a court should be slow to hold that a crime has
been created. This consideration or rule corresponds to the presumption in the interpretation
of statutes that a provision in an Act that is ambiguous must be interpreted in favour of the
accused (Hanid 1950 (2) SA 592 (T)).
119
In this regard, it is feasible to distinguish between a legal norm, a criminal norm and a
criminal sanction in an Act.
120
20
y A legal norm in an Act is a provision creating a legal rule that does not simultaneously
create a crime.
y A criminal norm in an Act is a provision that makes it clear that certain conduct constitutes
a crime.
y A criminal sanction is a provision in an Act stipulating what punishment a court must
impose after it has convicted a person of that crime.
The difference may be illustrated by the following example. A statutory prohibition may be
stated in the following three ways:
121
1. No person may travel on a train without a ticket.
2. No person may travel on a train without a ticket, and any person who contravenes this
provision commits a crime.
3. No person may travel on a train without a ticket, and any person who contravenes this
provision commits a crime and is punishable with imprisonment for a maximum period
of three months or a maximum fine of R1 000, or both such imprisonment and fine.
Example (1) merely contains a prohibition; although it creates a legal norm, it is not a legal
norm creating a crime. Non-compliance with this provision might lead to certain administrative measures (e.g. that the passenger may be ordered to get off the train at the next stop),
but it does not contain a criminal norm. A court will not, without strong and convincing indications to the contrary, hold that such a provision has created a criminal norm (Bethlehem
Municipality 1941 OPD 230).
122
Example (2) does contain a criminal norm, because of the words "commits a crime". It does
not, however, contain a criminal sanction, as nothing is mentioned about the punishment
that a court must impose after conviction.
123
Example (3) contains both a criminal norm and a criminal sanction; the criminal sanction is
contained in the words "is punishable with imprisonment for a maximum period of three
months or a maximum fine of R1 000, or both such imprisonment and fine".
124
Before we can accept that a provision in an Act has created a crime, it must be clear that the
provision contains a criminal norm. But what is the position if a statutory provision creates
only a criminal norm, but stipulates nothing about a criminal sanction?
125
In Director of Public Prosecutions, Western Cape v Prins 2012 9 SACR 183 (SCA), it was contended that no crime is created in the absence of a penalty clause in the particular legislation (prescribed punishment). In other words, the contention was that a person accused of a
statutory offence cannot be charged and found guilty of such an offence if there is not also a
sentence or punishment prescribed for the offence in the particular legislation. The Supreme
Court of Appeal rejected this contention. The Court found that there was no support for this
contention in the case law. Although the presence or absence of a penalty clause (prescribed
punishment) is an important factor in determining whether a crime has, in fact, been created
(at para 15), the court was of the view that it is not an essential factor, since it may otherwise be
very clear from the particular legislation that a crime was actually created. Apart from focusing
upon the language used in the Act, a court must consider, in particular, the objectives of the
particular legislation. If it is clear from the objectives of the legislation (expressed in the title
and preamble to the Act) and the entire context of the Act that the intention was to create
a crime or crimes, then a person may be charged with such (a) crime(s) and be found guilty,
even if no penalty is prescribed in the particular Act. The imposition of punishment is then
left to the discretion of the court, as has always been the position in the common law.
126
21
CRW2601/1
It should be noted, however, that the legislature, when creating crimes, usually also includes
penalty clauses. Of course, a statutory provision will best comply with the principle of legality if, apart from a criminal norm, it also contains a criminal sanction. The ideal is that the
legislature stipulates the maximum punishment for the crime. (In the unlikely event that a
statute creates a criminal sanction without a criminal norm, the court will deduce that the
legislature did in fact intend to create an offence, and that an offence was in fact created.)
127
2.5
CRIMES SHOULD NOT BE CREATED WITH
RETROSPECTIVE EFFECT (IUS PRAEVIUM)
Next, the principle of legality implies that nobody ought to be convicted of a crime unless,
at the moment it took place, the type of conduct committed was recognised by the law
as a crime. It follows that the creation of a crime with retrospective effect (i.e. the ex post
facto creation of crimes) is at variance with the principle of legality. This application of the
principle of legality is known as the ius praevium rule. ("Praevium" means "previous". Freely
translated, ius praevium means "the law that already exists".)
128
Suppose somebody had committed a certain act in 1990, which, at that time, was completely
innocent in the sense that it did not amount to a crime. Let's suppose that this innocent act
consisted of catching a certain type of wild bird not belonging to anybody, and putting it in
a cage. Let's suppose, further, that five years afterwards, in 1995, the legislature passed an Act
dealing with the protection of wildlife, in terms of which it prohibited the catching of that type
of bird, and expressly declared that anyone who caught such a bird had committed a crime.
Suppose, further, that this Act of 1995 contained a section that read: "This Act is deemed to
have come into operation on the first day of 1990." This would be an example of a law that
has retrospective effect. Such legislation is usually referred to as ex post facto legislation. (Ex
post facto means that the law was enacted after (post) the commission of the act.)
129
You will immediately appreciate that an Act of this nature, that is, one creating a crime with
retrospective effect, is most unfair, since the person who caught the bird in 1990, that is, at
a time when such an act was not a crime, can now, in 1995, be convicted of the crime created by the Act, and be punished for it, despite the fact that at the time of the commission
of the act in 1990, she neither knew nor could have known that such conduct is or would
be punishable. In 1990, she could not have been deterred from committing the act, since
at that time it was not yet punishable.
130
The Constitution contains a provision that expressly sets out the ius praevium rule.
Section 35(3) of this Act provides that every accused has a right to a fair trial, and paragraph (l) of this subsection provides that this right to a fair trial includes the right not
to be convicted of an offence in respect of an act or omission that was not an offence
under either national or international law at the time it was committed or omitted.
131
This section forms part of Chapter 2 of the Constitution, which contains the Bill of Rights. This
Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all
organs of state (s 8(1)). This means that any legislation or law that violates the Bill of Rights
may be declared null and void by a court.
132
In Masiya supra, the Constitutional Court had to decide on the constitutional validity of
the common-law definition of rape to the extent that it excludes anal penetration of a penis
into the anus of a female. (The common-law definition of rape, at that stage, was the unlawful,
133
22
intentional penetration of the male sexual organ – the penis – into the vagina of a woman.)
The court held that the common-law definition of rape be extended to include acts of nonconsensual penetration of a penis into the anus of a female.
The accused contended that the extended definition should not apply to him because it would
constitute a violation of his rights in terms of section 35(3)(l) of the Constitution. Keeping in
mind the ius praevium principle, the Constitutional Court ruled that the extended definition
of the crime of rape be applied prospectively only. In other words, because the field of application of the crime was extended only after the accused had performed the prohibited
act (i.e. non-consensual penetration of the anus of a female), he could not be convicted of
rape, but only of indecent assault.
134
The Masiya decision is discussed in detail in 2.7 below. Once you have read the discussion
of the case in 2.7, the facts of the case and the decision of the court will become clear to you.
135
2.6
CRIMES OUGHT TO BE FORMULATED CLEARLY (IUS
CERTUM)
Even if the ius acceptum and the ius praevium rules (discussed above) are complied with, the
principle of legality can still be undermined by the creation of criminal norms that are formulated vaguely or unclearly. If the formulation of a crime is unclear or vague, it is difficult
for the subject to understand exactly what is expected of her. At issue here is the ius certum
rule. (Certum means "clear" – the opposite of "vague".)
136
An example of a criminal prohibition couched in unacceptably vague language and hailing
from Nazi Germany in 1935 is the following: "Any person who commits an act which, according to the fundamental idea behind the penal law, and according to the good sense of the
nation, deserves to be punished, shall be punishable."
137
The Constitution contains no express provision as regards the ius certum rule. However, it is
probable that the provisions of section 35(3) (already mentioned above) will be interpreted
in such a way that section 35(3) covers the ius certum rule as well. Such an interpretation of
the section may be based either upon an accused's right to a fair trial in general, or on the
principle that if a criminal norm contained in legislation is vague or uncertain, it cannot be
said that the accused's act or omission amounted to a crime before the court interpreted the
provision as one containing a criminal norm.
138
2.7
PROVISIONS CREATING CRIMES MUST BE INTERPRETED
STRICTLY (IUS STRICTUM)
The fourth application of the principle of legality is to be found in the ius strictum rule. Even
if the above-mentioned three aspects of the requirement of legality, namely ius acceptum,
ius praevium and ius certum, are complied with, the general principle can nevertheless be
undermined if a court is free to interpret widely the words or concepts contained in the definition of the crime, or to extend their application by analogous interpretation. "Ius strictum"
literally means "strict law". Freely translated, it means "a legal provision that is interpreted
strictly (i.e. the opposite of 'widely')".
139
23
CRW2601/1
There is a well-known rule in the interpretation of statutes that crime-creating provisions
in statutes should be interpreted strictly. The underlying idea here is not that the Act
should be interpreted against the state, and in favour of the accused, but only that
where doubt exists concerning the interpretation of a criminal provision, the accused
be given the benefit of the doubt.
140
The ius strictum rule implies, further, that a court is not authorised to extend a crime's field
of application by means of analogy to the detriment of the accused.
141
However, in Masiya supra, the Constitutional Court held that a High Court may, in exceptional circumstances, extend the field of application of a crime in order to promote
the values enshrined in the Constitution. Note, however, that in this particular case,
the accused was not prejudiced in that the extended definition was not applied
to him. The background to the case is as follows:
X was charged with the crime of rape. At that stage, the common-law definition of rape was
the unlawful, intentional sexual intercourse with a woman without her consent. The element
of "sexual intercourse" required nothing less than penetration by the male genital organ into
the vagina of the woman. At X's trial, the evidence established that the victim, a nine-year-old
girl, was penetrated anally (i.e. in the anus), and not in the vagina, as required for the crime
of rape. The state advocated that X be convicted of indecent assault (a competent verdict on
a charge of rape). However, the regional magistrate held that the common-law definition of
rape, according to which the crime is restricted to penile penetration of the vagina, should
be declared unconstitutional, and should be amended to include penile penetration of the
anus. The regional magistrate accordingly convicted the accused of rape.
142
In an appeal by the accused, the High Court confirmed the decision of the regional magistrate
in a judgment reported as S v Masiya 2006 (2) SACR 357 (T). The High Court (at para 61) explained
that, in terms of the existing common-law definition of the crime, the non-consensual anal
penetration of a girl (or a boy) amounted only to the (lesser) common-law crime of indecent
assault, and not rape, because only non-consensual vaginal sexual intercourse was regarded
as rape. The Court questioned why the non-consensual sexual penetration of a girl (or a boy)
per anum should be regarded as less injurious, less humiliating and less serious than the
non-consensual sexual penetration of a girl per vaginam. The Court (at para 71) was of the
view that the common-law definition of rape was not only archaic, but also irrational, and
amounted to arbitrary discrimination regarding which kind of sexual penetration was to be
regarded as the most serious.
143
The High Court was of the opinion that the conviction of rape did not amount to an unjustified violation of the accused's fair-trial rights (e.g. the principle of legality, which, in sections
35(3)(l) and 35(3)(n) of the Constitution, is guaranteed as one of the rights of the accused),
because non-consensual anal intercourse was already a crime, and the accused knew that
he was acting unlawfully. The Court (at para 73) argued that it had never been a requirement
that an accused, at the time of the commission of an unlawful deed, should know whether it
is a common-law or a statutory offence, or what the legal/official terminology is when naming it. The fact that an extension of the definition of the crime of rape had been proposed
in the Criminal Law (Sexual Offences) Amendment Bill of 2007, but that that Bill, at the time
of the hearing of the case, had not yet become legislation, was a factor that convinced the
court (para 77) that it was the appropriate forum to extend the definition of the crime of rape.
144
24
In extending the field of application of the crime of rape, the High Court relied upon certain
provisions of the Constitution. These provisions empower the courts to develop the common
law in order to give effect to a right in the Bill of Rights. The relevant provisions are sections
8(3) and 39(2) of the Constitution. Section 8(3)(a) provides that:
145
146
a court –
(a) in order to give effect to a right in the Bill of Rights, must apply, or if necessary
develop, the common law to the extent that legislation does not give effect
to that right ... (our emphasis)
147
Section 39(2) provides that
When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights (our emphasis).
148
X once again appealed against his conviction of rape – this time to the Constitutional Court,
on the ground of violation of his right to a fair trial. The Constitutional Court (at para 30) emphasised that the legislature is primarily responsible for law reform. However, section 39(2)
of the Constitution empowers the courts to develop the common law in any particular case.
Where there is a deviation from the spirit, purport and objects of the Bill of Rights (at para
33), the courts are, in fact, obliged to develop the common law by removing the deviation.
149
The Constitutional Court found that the common-law definition of rape was not unconstitutional, but that it needed to be adapted to comply with the provisions of the Bill of Rights.
The Court focused only on the facts before it, and on the particular rights of women that are
violated by the restricted definition of the crime of common-law rape, namely the rights of
women to dignity, sexual autonomy and privacy. The definition of the crime was extended
in order to give effect to these rights in respect of women only. Of particular concern to the
Court was the protection of these rights of young girls who may not be able to differentiate
between the different types of penetration, namely penetration per anum or per vaginam.
The Court (at para 39) remarked that although the consequences of non-consensual anal
penetration may differ from those of non-consensual penetration of the vagina, the trauma
associated with the former is just as humiliating, degrading and physically hurtful as that
associated with the latter. Inclusion of penetration of the anus of a female by a penis in the
definition of rape would therefore increase the extent to which vulnerable and disadvantaged women would be protected by the law. The Court was of the view that this approach
would harmonise the common law with the spirit, purport and objects of the Bill of Rights.
150
The Court (at para 51) held that the principle of legality is not a bar to the development
of the common law. Such a conclusion would undermine the principles of the Constitution,
which require the courts to ensure that the common law is infused with the spirit, purport and
objects of the Constitution. However, when developing the common law, it is possible to do
so prospectively only. The Court held that in that particular case, to develop the common
law retrospectively would offend the constitutional principle of legality. One of the central
tenets underlying the understanding of legality is that of foreseeability. The Court (at para
52) explained that this meant that the rules of criminal law should be clear and precise, so
that an individual may easily behave in a manner that avoids committing crimes. In
other words, fairness to the accused required that the extended meaning of the crime of
rape not apply to him, but only to those cases that arose after judgment in the matter had
been handed down. X could therefore be convicted of indecent assault only, and not of rape.
151
25
CRW2601/1
Read
The Masiya case in the Reader (4-18), and critically consider Snyman's
criticism of the judgment in Criminal Law 39-41.
Activity 2.1
Assume the South African parliament passes a statute in 2004, which contains the following provision:
Any person who commits an act which could possibly be prejudicial to sound relations
between people, is guilty of a crime. This provision is deemed to have come into operation on 1 January 1995.
No punishment is specified for the crime. Do you think that this provision complies with
the principle of legality?
Feedback
2
You should have considered whether the provision complies with all the rules embodied in
the principle of legality. The provision complies with certain aspects of the ius acceptum
rule. It is clearly stated in the provision that the conduct prohibited is a "crime". This means
that the provision contains a criminal norm. (Look again at the train-ticket example above
if you still do not understand the difference between these norms.) However, the maximum
punishment that may be imposed is not prescribed in the provision. Therefore, the ius
acceptum rule has not been fully complied with.
The provision does not comply with the ius praevium rule because the crime is created with
retrospective effect. The provision also does not comply with the ius certum rule because
it is formulated in vague and uncertain terms. The phrase "possibly prejudicial to sound
relations" is very wide, and does not indicate exactly what type of conduct is prohibited.
Does it refer to "sound relations" in the family context or in the workplace, or to relations
between people of different cultures or races? The ius strictum rule further requires that an
act that is ambiguous be interpreted strictly. In practice, this means that a court may not
give a wide interpretation of the words or concepts contained in the definition of the crime.
A provision that is very wide and vague should be interpreted in favour of the accused. It
follows that the provision does not comply with the principle of legality.
2.8
THE PRINCIPLE OF LEGALITY IN PUNISHMENT
In the discussion so far, we have considered the application of the principle of legality to the
creation, validity, formulation and interpretation of crimes or definitions of crimes. When
dealing with the imposition of punishment, the ius acceptum, ius praevium, ius certum and ius
strictum rules are also applicable. The application of the principle of legality to punishment
(as opposed to the existence of the crime itself) is often expressed by the maxim nulla poena
sine lege – no penalty without a statutory provision or legal rules.
152
26
y The application of the ius acceptum rule to punishment is as follows: in the same way as a
court cannot find anyone guilty of a crime unless the conduct is recognised by statutory
or common law as a crime, it cannot impose a punishment unless the punishment, in respect
of both its nature and extent, is recognised or prescribed by statutory or common law.
y The application of the ius praevium rule to punishment is as follows: if the punishment to
be imposed for a certain crime is increased, it must not be applied to the detriment of an
accused who committed the crime before the punishment was increased.
y The application of the ius certum rule to punishment is that the legislature should not
express itself vaguely or unclearly when creating and describing punishment.
y The application of the ius strictum rule to punishment is that where a provision in an Act
that creates and prescribes a punishment is ambiguous, the court must interpret the
provision strictly.
Section 35(3)(n) of the Constitution contains a provision that incorporates the nulla
poena rule. It provides that the right to a fair trial also includes the right to the benefit
of the least severe of the prescribed punishments if the prescribed punishments for
the offence have been changed between the time that the offence was committed
and the time of sentencing.
153
GLOSSARY
154
156
ius acceptum
ius praevium
ius certum
158
160
162
ius strictum
nulla poena sine lege
ex post facto
164
"the law that we have received", or the rule that a court may find
an accused guilty of a crime only if the kind of act performed is
recognised by the law as a crime
155
"previous law", or "the law that already exists", or the rule that a
court may find an accused guilty of a crime only if the kind of act
performed was recognised as a crime at the time of its commission
157
"clear law", or the rule that crimes ought not to be formulated
vaguely
159
"strict law", or the rule that a court must interpret the definition
of a crime narrowly rather than broadly
161
"no punishment without a legal provision", or the application of
the rules of legality to punishment
163
165
after the event
167
27
CRW2601/1
SUMMARY OF THE EFFECT OF THE RULES EMBODIED IN THE
PRINCIPLE OF LEGALITY
168
Further reading
For more information on the principle of legality, read:
• Burchell Principles of Criminal Law (2016) 35–46.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 17–19.
Self-assessment
2
(1) Define the principle of legality.
(2) Name the five rules embodied in the principle of legality (refer to the Latin terms).
(3) Discuss the role of the ius acceptum rule in determining whether
(a) conduct constitutes a crime in terms of the common law
(b) a statutory provision has created a crime
(4) Distinguish between a legal norm, a criminal norm and a criminal sanction.
(5) With reference to the decision of the Supreme Court of Appeal in DPP v Prins, discuss how
our courts should determine whether a statutory offence has been created if there is no
punishment prescribed for the offence in the particular legislation.
(6) Define the ius praevium rule.
(7) Define the ius certum rule.
(8) Discuss the decision of the Constitutional Court in Masiya.
(9) Discuss the ius strictum rule.
(10) Discuss the principle of legality in punishment.
28
LEARNING UNIT 3
The act
Contents
Learning outcomes
3.1 Background
3.2 Introduction
3.3 The act
3.3.1 "Conduct", "act" and "omission"
3.3.2 Thoughts not punishable
3.3.3 Act must be a human act or omission
3.3.4 Act or conduct must be voluntary
3.4 Omissions
3.4.1 Legal duty to act positively
3.4.2 The defence of impossibility
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• expand your understanding of the legal meaning of the word "act", as used in criminal
law, by recognising conduct that might not qualify as an act and by applying appropriate criteria to decide whether such conduct qualifies as an act
• demonstrate your understanding of the defence of impossibility by recognising the
potential applicability of the defence of impossibility in a given set of facts and by applying appropriate criteria to reach a conclusion
29
CRW2601/1
3.1
BACKGROUND
In study unit 1, we stated that the four cardinal requirements of liability for a crime are as
follows: (1) an act, (2) compliance with the definitional elements, (3) unlawfulness and (4)
culpability.
169
In this study unit, we will discuss the first of these requirements and related topics. In legal
literature, the requirement of an act that corresponds with the definition of the proscription
is often referred to by the technical expression actus reus.
170
3.2
INTRODUCTION
Once it is clear that the type of crime with which X is charged is recognised in our law (in
other words, once it is clear that the principle of legality has been complied with), the first
requirement for determining criminal liability is the following: there must be some conduct
on the part of X. By ''conduct", we mean an act or omission. ''Act" is sometimes referred to as
''positive conduct" or ''commission" (or its Latin equivalent commissio), and an ''omission" (or
its Latin equivalent omissio) is sometimes referred to as ''negative conduct" or ''failure to act".
171
172
On the requirement of an act in general, see Criminal Law 43-49; Reader 34-35.
3.3
THE ACT
3.3.1
"Conduct", "act" and "omission"
From a strictly technical point of view, the term ''act" does not include an ''omission". Rather,
an act is the exact opposite of an omission. No general concept embraces both these terms.
The two concepts differ from each other like night and day, because to do something and
not to do something are exact opposites. However, we may use the word ''conduct" to refer
to both of them.
173
To be completely correct technically, we would therefore always have to speak of ''an act
or an omission" or of ''an act or a failure to act" when referring to this first basic element of
liability. Since such expressions are cumbersome, and since the punishment of omissions
is more the exception than the rule, writers on criminal law have become accustomed to
174
30
using the word ''act" in a wide sense when referring to both an act and an omission – in other
words, as a synonym for ''conduct". Normally this use of the word ''act" in a non-technical,
non-literal sense does not lead to confusion. From the context of the statement, the reader
would normally be able to make out whether the writer is using the word ''act" loosely as
a term referring to both an act or omission, or whether he is using it in the strict, technical
sense of ''active conduct".
In this study guide, the word ''act" will mostly be used in its wide, non-literal sense (in other
words, as referring to both a commission and an omission). This is the abbreviated way of
referring to this basic element of criminal liability.
175
3.3.2
Thoughts not punishable
Merely thinking of doing something, or even a decision to do it, is not punishable. Before
there can be any question of criminal liability, X must have started converting his thoughts
into actions. This does not mean that only the completed crime, with all the harm already
done, is punishable. As will be seen, an attempt to commit a crime is also punishable; but
even then, some act is required that goes beyond a mere idea or a decision to do something.
Even uttering words may be sufficient to constitute a crime, as is evident from the fact that
incitement and conspiracy are punishable.
176
3.3.3
Act must be a human act or omission
The act must be a human act; in other words, the perpetrator of the act must be a human being. In ancient societies and during the Middle Ages, animals and even inanimate objects, such
as beams that fell on people's heads, were sometimes "tried" and "punished", but this cannot
happen today in the South African (or any other modern) legal system. (For an example of the
punishment of animals, consult the Bible book of Exodus, chapter 21, verse 28.) A human being can, however, be punished if he commits a crime through the agency of an animal,
for example where he urges his dog to bite someone (Fernandez 1966 (2) SA 259 (A)).
177
3.3.4
Act or conduct must be voluntary
178
(Criminal Law 46-49; Reader 32-35)
3.3.4.1 General
An act or an omission is punishable only if it is voluntary.
179
The conduct is voluntary if X is capable of subjecting his bodily movements to his will
or intellect.
If conduct cannot be controlled by the will, it is involuntary; such as when a sleepwalker
tramples on somebody, or an epileptic swings his hand while having an epileptic fit, and
hits someone in the face. If X's conduct is involuntary, it means that X is not the "author"
of the act or omission; it was then not X who committed an act, but rather something that
happened to X.
180
The concept of a voluntary act should not be confused with the concept of a willed act.
To determine whether there was an act in the criminal-law sense of the word, the question
is merely whether the act was voluntary. It need not be a willed act as well. Conduct that is
181
31
CRW2601/1
not willed, such as acts that a person commits negligently, may therefore also be punishable. This does not mean that a person's will has no significance in criminal law; whether he
directed his will towards a certain end is indeed of the greatest importance, but this is taken
into consideration only when determining whether the requirement of culpability (and, more
particularly, culpability in the form of intention) has been complied with.
From what has been said above, you will note that the concept of an "act" has a different,
and more technical, meaning for a lawyer than for a layman. The layman may regard the
muscular contractions of a sleepwalker or an epileptic as an "act", but a jurist or lawyer will
not take this view, since such contractions do not constitute voluntary conduct.
182
3.3.4.2 Factors that exclude the voluntariness of the act
The following factors result in the conduct's not being regarded as voluntary in the eyes of
the law and, therefore, not qualifying as acts in the criminal-law sense of the word.
183
a. Absolute force
The voluntary nature of an act may first be excluded by absolute force (vis absoluta) (Hercules
1954 (3) SA 826 (A) 831 (G)). The following is an example of absolute force:
184
185
X is slicing an orange with his pocketknife. Z, who is much bigger and stronger than X,
grabs X's hand that is holding the knife and presses it, with the blade pointing downward, into Y's chest. Y dies of the knife-wound. X, with his weaker physique, would
have been unable to defend himself, even if he had tried. X performed no act. It was
Z who performed the act.
Involuntary conduct – absolute force. Z, who is much bigger and stronger than X, grabs X's hand in
which she is holding a knife, and presses it, with the blade pointing downward, into Y's chest, resulting in
Y's death. X, who is physically much weaker than Z, would have been unable to prevent this, even if she had
tried. Does X commit murder or culpable homicide? No, because there is no voluntary conduct on her part.
32
This situation must be distinguished from one involving relative force (vis compulsiva), where
X is indeed in a position to refrain from committing the harmful act, but is confronted with
the prospect of suffering some harm or wrong if he does not commit it. The following is an
example of relative force:
186
Z orders X to shoot and kill Y, and threatens to kill X himself if he refuses to comply
with the order. If X then shoots Y, there is indeed an act, but X may escape liability on
the ground that his conduct was justified by necessity.
Further reading
(The facts in Goliath 1972 (3) SA 1 (A) and Peterson 1980 (1) SA 938 (A) were materially
similar to those given in the above example of relative force. Goliath's case will be discussed below, under the ground of justification known as necessity.)
The essential difference between absolute and relative force lies in the fact that absolute force excludes X's ability to subject his bodily movements to his will or intellect,
whereas this ability is left intact in cases of relative force. Relative force is therefore
aimed at influencing X to behave in a certain way, although it remains possible for him to
behave differently.
187
b Natural forces
The voluntary nature of an act may, in the second place, be excluded if a person is propelled
by natural forces, thereby causing others damage. If a hurricane blows X through Y's shopwindow, X has committed no act for which he may be punished.
188
189
c Automatism
i Meaning of "automatism"
The third – and in practice, the most important – instance in which the law does not regard
the conduct as voluntary is where a person behaves in a "mechanical" fashion, such as in the
following instances: reflex movements such as heart palpitations or a sneezing fit; somnambulism; muscular movements such as an arm movement of a person who is asleep, unconscious, hypnotised or having a nightmare; an epileptic fit; or a so-called blackout. These types
of behaviour are often referred to as cases of "automatism", since the muscular movements
are more reminiscent of the mechanical behaviour of an automaton than of the responsible
conduct of a human being whose bodily movements can be controlled by his will.
190
191
192
33
CRW2601/1
193
Involuntary conduct – automatism. While walking in his sleep, X tramples on Y's head. Does X commit
assault? No, because there has been no voluntary conduct on his part.
The following are EXAMPLES (from our case law) of involuntary behaviour in the form of
automatism.
194
y In Mkize 1959 (2) SA 260 (N), X stabbed and killed Y with a knife while he (X) was having
an epileptic fit and, according to the court, acted "as a result of blind reflex activity". He
was acquitted on a charge of murder.
y In Du Plessis 1950 (1) SA 297 (O), X was charged with driving a motorcar negligently, thereby
injuring a pedestrian. He was 72 years old and, according to medical evidence (which the
court accepted), at the time of the accident, he experienced a "mental black-out" as a
result of low blood pressure. He was found not guilty.
ii "Sane" and "insane automatism"
The courts often use the expressions "sane automatism" and "insane automatism". The meaning of these expressions are as follows:
195
196
"Sane automatism" refers to cases in which X relies on the defence that there was no
voluntary act on his part because he momentarily acted "like an automaton". This is
the defence discussed above. X does not rely on mental illness ("insanity") as a defence.
(We will discuss the latter defence in a later study unit.)
"Insane automatism" refers to cases in which X relies on the defence of mental illness ("insanity") – a defence that we will discuss in a later study unit. In other words,
he does not rely on the defence of absence of a voluntary act. Here, it is not a matter of
the defence of "automatism" discussed above. The expression "insane automatism" is
actually misleading, because it erroneously creates the impression that it involves the
defence of automatism, whereas, in fact, it is a completely different defence, namely
34
that of mental illness. (In the latest case law, there are indications that the courts may
be moving away from the use of this misleading expression.)
The difference between "sane" and "insane automatism" is important for the following two
practical reasons:
197
198
The first difference relates to onus of proof.
y If X relies on the defence of "sane automatism", the onus of proving that the act was
performed voluntarily rests on the state (Trickett 1973 (3) SA 526 (T) 537).
y If, on the other hand, X raises the defence of "insane automatism" (i.e. the defence of
mental illness), the onus of proving his mental illness rests upon X, and not on the state.
(This will become clearer in the later discussion of the defence of mental illness.)
The second difference relates to the eventual outcome of the case, namely whether X will
leave the court as a free person.
199
y A successful defence of "sane automatism" results in X's leaving the court a free person,
as he is deemed not to have acted.
y A successful defence of "insane automatism", on the other hand, results in the court
dealing with X in accordance with the relevant provisions of the Criminal Procedure Act
that address the orders that a court can make after finding that X was mentally ill at the
time of the commission of the crime. Although there are different types of orders that a
court may make, in practice, it mostly makes an order that X be detained in a psychiatric
hospital for a certain period, which results in X's losing his freedom – in other words, he
does not leave the court as a free person.
It may sometimes be very difficult to decide whether, in a given case, you are dealing with
"sane" or "insane" automatism. If this question arises during a trial, a court will have to hear
expert evidence and decide the issue on the basis of such evidence.
200
Read
Read the following judgment in the Reader: Henry 1999 (1) SACR 13 (SCA).
iii Defence does not succeed easily
It would be incorrect to infer from the above discussion that it is easy for an accused to succeed with a defence of automatism. Rather, the opposite is the case: the attitude of a court
towards a defence of automatism is usually one of great circumspection. An accused who
has no other defence is likely to resort to this one in a last attempt to try and escape the
consequences of his action. Even where "sane automatism" is pleaded, and the onus is on
the state, X must provide a basis for his defence, for example, by calling medical or other
expert evidence that may create doubt about the voluntary nature of the act (Henry 1999
(1) SACR 13 (SCA)).
201
202
iv Antecedent liability
Note the following qualification of the rule that muscular or bodily movements performed in
a condition of automatism do not result in criminal liability: if X knows that he suffers epileptic
fits or that, because of some illness or infirmity, he may suffer a blackout, but nevertheless
proceeds to drive a motorcar, hoping that these conditions will not occur while he is sitting
behind the steering wheel, but they nevertheless do occur, he cannot rely on the defence of
203
204
35
CRW2601/1
automatism. In these circumstances, he can be held criminally liable for certain crimes that
require culpability in the form of negligence, such as negligent driving or culpable homicide.
His voluntary act is then performed when he proceeds to drive the car while still conscious.
We describe this type of situation as "antecedent liability". In Victor 1943 TPD 77, for example,
X was convicted of negligent driving, despite the fact that the accident he had caused had
been due to an epileptic fit: evidence revealed that he had already been suffering epileptic
fits for the previous 13 years, and that he had had insufficient reason to believe that he would
not again suffer such a fit on that particular day.
Activity 3.1
X, a 62-year-old man, works in a mine. His job is to operate the cocopans. These cocopans
are used to transport hard rocks and gravel from the bottom of the mine to the surface.
One day, while working, he suddenly experiences a blackout. In his state of unconsciousness, he falls on the lever that controls the movement of the cocopans. A cocopan crashes
into another worker, Y. Y is killed instantly. X is charged with culpable homicide. The evidence before the court is as follows: X has been suffering from diabetes for the past year.
His doctor had warned him that he may lose consciousness at any time if he fails to take
his medication as instructed. On that particular day, X had failed to take his medication.
The court finds that X had insufficient grounds for assuming that he would not suffer a
blackout on that particular day. X's legal representative argues that X cannot be convicted
of culpable homicide because, at the time of the commission of the offence, he was not
performing a voluntary act. In other words, the defence raised is that of automatism. You
are the state prosecutor. What would your response be to this argument?
Feedback
3
You would rely on the decision in Victor 1943 TPD 77, arguing that this is a case of antecedent
liability. The voluntary act was performed at the stage when X, fully conscious, started
operating the cocopans. What the law seeks to punish is the fact that he (X), while in complete
command of his bodily movements, commenced his inherently dangerous tasks at the mine
without having taken his medication. In so doing, he committed a voluntary act that set in
motion a series of events that culminated in the accident.
3.4
OMISSIONS
(Criminal Law 49-52; Reader 36-37)
205
We have explained above that the word "act", when used in criminal law, bears a technical
meaning in that it can refer to both positive behaviour (commissio) and a failure to act positively – that is, an omission (omissio). We will now proceed to discuss liability for omissions.
206
36
3.4.1
Legal duty to act positively
3.4.1.1 General rule
Read
Read the following judgment in the Reader: Minister van Polisie v Ewels
1975 (3) SA 590 (A).
An omission is punishable only if there is a legal duty upon X to act positively. A moral
duty is not the same as a legal one. When is there a legal duty to act positively?
207
The general rule is that there is a legal duty upon X to act positively if the legal convictions of the community require him to do so. This was decided in Minister van Polisie v
Ewels 1975 (3) SA 590 (A) 597A-B.
208
209
Let's consider the example illustrated above: X, a strong and healthy adult male, is standing
next to a shallow pond in which Y, a child, is drowning. X fails to rescue Y. (Assume that X is
neither Y's father, nor guardian, nor a lifesaver on duty.) X could have saved Y's life merely by
stretching out his arm to Y and pulling him out of the water, but he failed to do this. Can X
be held criminally liable for Y's death on the ground of his omission? Although there has not
yet been, as far as we are aware, a reported decision in which our courts have given a specific
ruling on the question that arises in this specific set of facts, we submit that in such a set of
facts, X indeed has a legal duty to act positively, since the legal convictions of the community
require X to act positively in these circumstances.
210
3.4.1.2 Legal duty: specific instances
The general rule set out above, in terms of which we should consider the legal convictions
of the community, is relatively vague and, therefore, not always easy to apply in practice.
In legal practice, a number of specific instances are generally recognised in which a legal
duty is imposed upon X to act positively. These instances do not embody a principle that is
211
37
CRW2601/1
contrary to the general rule set out above. Most of them may, in fact, be regarded merely as
specific applications of the general rule. They are instances encountered relatively often in
practice, and which have crystallised as easily recognisable applications of the general rule
set out above, namely that there is a legal duty to act positively if the legal convictions of
the community require that there be such a duty.
These specific instances are the following:
212
1. A statute may impose a duty on somebody to act positively, for example, to complete
an annual income-tax return, or not to leave the scene of a car accident, but to render
assistance to the injured and to report the accident to the police (s 61 of the National Road
Traffic Act 93 of 1996). Recently, the state has imposed several legal duties on individuals
and institutions to report on persons who commit crimes. For example, there is a duty on
a person who knows that the offence of corruption has been committed to report such
knowledge to the police (s 20 of the Prevention and Combating of Corrupt Activities Act
12 of 2004). The failure by an individual or accountable institution to report knowledge
of the commission of certain financial crimes is also made punishable (in terms of various
provisions of the Financial Intelligence Centre Act 2001).
2. A legal duty may arise by virtue of the provisions of the common law. (Remember:
"common law" means those rules of law that are not contained in legislation.) Example:
According to the provisions of the common law dealing with the crime of high treason,
a duty is imposed on every person who owes an allegiance to the Republic and who
discovers that an act of high treason is being committed or planned, to reveal this fact
as soon as possible to the police. The mere (intentional) omission to do this is equivalent
to an act of high treason.
3. The duty may arise from an agreement. In an English case, Pitwood (1902) 19 TLR 37, the
facts were that X and a railway concern had agreed that for remuneration, X would close
a gate every time a train went over a crossing. On one occasion he omitted to do so and,
in this way, caused an accident, for which he was held liable.
38
4. Where a person accepts responsibility for the control of a dangerous or potentially
dangerous object, a duty arises to control it properly. In Fernandez 1966 (2) SA 259 (A),
X kept a baboon and failed to repair its cage properly, with the result that the animal
escaped and bit a child, who later died. X was convicted of culpable homicide.
5. A duty may arise where a person stands in a protective relationship to somebody
else, for example a parent or guardian who has a duty to feed a child. In B 1994 (2) SACR
237 (E), X was convicted of assault in the following circumstances: She was married and
had a child, Y, who was two-and-a-half years old. Her marriage broke up, and she began
living with another man, Z. Z repeatedly assaulted Y. X was aware of these assaults, but
did nothing to stop Z. As Y's natural mother, X had a legal duty to care for and protect Y,
and to safeguard his wellbeing. By omitting to prevent the assaults, she rendered herself
guilty of assault upon Y. (Z was also convicted of the assault upon Y.)
6. A duty may arise from a previous positive act, such as where X lights a fire in an area
where there is dry grass, and then walks away without putting out the fire to prevent it
from spreading. We sometimes refer to this type of case as an omissio per commissionem
(an omission following a positive act that created the duty to act positively).
7. A duty may sometimes arise by virtue of the fact that a person is the incumbent of a certain
office. It was held in Minister van Polisie v Ewels 1975 (3) SA 590 (A) that a policeman who
sees somebody else being unlawfully assaulted has a duty to come to the assistance of
the person being assaulted. In Gaba 1981 (3) SA 745 (O), X was one of a team of policemen
who were trying to trace a certain dangerous criminal called "Godfather". Other members
of the investigation team had arrested a suspect and questioned him in X's presence with
a view to ascertaining his identity. X knew that the suspect was in fact "Godfather", but
intentionally refrained from informing his fellow investigation team members accordingly.
Because of this omission, he was convicted of attempting to defeat or obstruct the course
of justice. Relying on Minister van Polisie v Ewels (supra), the court held that X had a
legal duty to reveal his knowledge, and that this duty was based upon X's position as a
policeman and a member of the investigating team.
8. A legal duty may also arise by virtue of an order of court. Example: X and Y are granted
a divorce, and the court that grants the divorce orders X to pay maintenance to Y in order
to support her and the children born of their marriage. If X omits to pay the maintenance,
he commits a crime.
Hint
It ought to be reasonably easy to study the specific instances in which a person has a
legal duty to act positively. Below is a table containing eight rows, representing the eight
specific instances of a legal duty to act positively. The first column contains the number.
In the second column, you should write the word or expression that describes the specific
instance of a legal duty. In the third column, you should write a few words (including,
where applicable, the names of cases) that describe the application of the relevant legal
duty. To assist you, we have filled in the particulars of the first three specific instances.
You must fill in the particulars of the remaining five instances by yourself.
1. statute
income tax or motor accident
2. common law
high treason – report to police
3. agreement
railway crossing – Pittwood
39
CRW2601/1
4.
5.
6.
7.
8.
3.4.1.3 The state's duty to protect citizens from violent crime
The Constitutional Court and the Supreme Court of Appeal, in a number of civil cases dealing with delictual liability, ruled that a duty rests on the state, acting through the police, to
protect citizens against violent crime.
213
The watershed case was Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
In that case, the Constitutional Court recognised the existence of such a legal duty on the
police in terms of the court's powers to develop the common law according to the values,
norms and rights of citizens enshrined in the Constitution. The background to this case was
briefly that C was brutally assaulted by a man (X) who had several previous convictions for
crimes of violence. This occurred while X was out on bail, awaiting trial on charges of rape
and attempted murder in respect of another victim, E. C subsequently claimed damages from
the state on the basis that the police and prosecuting authorities had negligently failed to
protect her against being assaulted by a dangerous criminal.
214
In Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA), the Supreme Court
of Appeal recognised the existence of a legal duty resting on the state to protect citizens
against violent crimes in the following circumstances: The police had been aware of the fact
that X had threatened to kill members of his family. However, the police failed to take the
necessary steps to ensure that X be deprived of a licence to possess a firearm. X subsequently
shot and injured Y, who instituted a civil claim for damages against the state on the basis of
a negligent failure to act positively to protect her. The Supreme Court (at paras 12 and 20)
held that while private citizens might "mind their own business" and "remain passive when
the constitutional rights of other citizens are under threat", the state has a positive duty to
act in protection of fundamental human rights. The majority of the court (para 20) founded
this duty on the concept of "accountability" of government in terms of the provisions of the
Constitution, whereas one of the judges, Marais JA, founded the duty on the common-law
principle of liability for omissions (namely, the legal convictions of the community).
215
As pointed out above, these were all civil cases. It is nevertheless also important to take
note of these cases for the purpose of criminal liability based upon an omission. The test for
determining whether a legal duty to act positively exists is determined by the legal convictions of the community in both civil and criminal cases. (See Minister van Polisie v Ewels
supra.) According to Burchell, criminal liability of a state official based on a legal duty to act
positively may, in view of the trend established by the Constitutional Court and the Supreme
Court of Appeal in these civil cases, in the future be recognised in similar cases. It is at least
theoretically possible that a state official (e.g. a policeman) who had failed to act positively
to protect a person from violent crime may be convicted of, for instance, the crime of assault
or even culpable homicide, provided that he had acted with the required culpability (inten216
40
tion or negligence). (For a further discussion of this topic, see Burchell J Principles of Criminal
Law (2016) 86-91.) We could also argue that certain cases may be brought under the specific
instances already recognised in criminal law, namely where there is a protective relationship or control over a dangerous object. (Review the discussion in 3.4.1.2 above.)
Activity 3.2
Y, a two-year-old child, goes to a nursery school. X, the teacher at the nursery school,
often does her washing and ironing while looking after the kids. One day, while ironing,
the telephone rings. She runs to answer the phone, failing to switch off the hot iron.
While playing, Y accidentally pulls the cord of the iron. The iron falls on top of his body.
He is severely injured. X is charged with assault. As state prosecutor, you have to prove
that the accused had performed an act in the legal sense of the word. Explain how you
would go about proving this.
Feedback
4
You may argue that this is an instance where there was a legal duty upon X to take positive
action. More specifically, this duty arose from a previous positive act. In law, this is known as
an omissio per commissionem. See specific instance (6) listed above. The duty may also arise
from the fact that X stood in a protective relationship to Y (specific instance 5 listed above).
3.4.2
The defence of impossibility
217
(Criminal Law 51-52; Reader 52-55)
As in the case of active conduct, X's omission must be voluntary in order to result in criminal
liability. An omission is voluntary if it is possible for X to perform the positive act. After all,
the law cannot expect somebody who is lame to come to the aid of a drowning person, or
somebody who is bound in chains to extinguish a fire. If X is summoned to appear as a witness
at the same time on the same day in both Pretoria and Cape Town, it is impossible for him
to be present at both places simultaneously. When charged with contempt of court because
of his failure to appear at one of these places, he may plead impossibility as a defence. In
short, the objective impossibility of discharging a legal duty is always a defence when the
form of conduct with which X is charged is an omission. The requirements for successfully
relying on the defence of impossibility are the following:
218
1. The legal provision that is infringed must place a positive duty on X
The defence cannot be raised in cases where a mere prohibition, that is to say, a rule that
places a ''negative duty" on someone, is infringed. The result of this requirement is that
the defence of impossibility can be pleaded only if the conduct that forms the basis of the
charge consists in an omission. Where there is a simple prohibition, X will merely have to
refrain from committing the prohibited act, which he is not compelled to perform. He should
therefore not be allowed to plead that it was impossible for him not to perform the act.
219
This defence may, for example, be pleaded successfully if X has failed to comply with a legal
provision that placed a positive duty on him to attend a meeting, or to report for military
duty (Jetha 1929 NPD 91; Mostert 1915 CPD 226). Note, however, the following case in which
220
41
CRW2601/1
the court refused to uphold a plea of impossibility because the law did not impose a positive
duty on X to perform the act concerned:
In Canestra 1951 (2) SA 317 (A), X was charged with contravening a regulation that prohibited
the catching of undersized fish. There was evidence that if a net with a larger mesh had been
used, the undersized fish would have escaped, but this would also have allowed some of
the most important kinds of fish to escape. Impossibility was rejected as a defence, since the
regulations did not oblige anyone to pursue the occupation of fishing.
221
2. It must be objectively impossible for X to comply with the relevant legal provision
It must have been objectively impossible for X to comply with the relevant legal provision.
It must have been impossible for any person in X's position to comply with the law. This
implies that it must have been absolutely (and not merely relatively) impossible to comply
with the law. If X were imprisoned for a certain period, he could not invoke impossibility as a
defence if he were charged with failure to pay tax, if it had been possible for him to arrange
for somebody else to pay it on his behalf (Hoko 1941 SR 211 212). The criterion to apply in
order to determine whether an act is objectively impossible is whether it is possible according
to the convictions of reasonable people in society. The question is therefore not so much
whether an act is physically possible or not. The mere fact that compliance with the law is
exceptionally inconvenient for X, or requires a particular effort on his part, does not mean
that it is impossible for him to comply with the law (Leeuw 1975 (1) SA 439 (0)).
222
3. X must not himself be responsible for the situation of impossibility – Close Settlement Corporation
1922 AD 194
Activity 3.3
A municipal by-law stipulates that no homeowner may dump his garden refuse in public
parks. The conduct prohibited is defined as a crime and is punishable with a maximum
fine of R2 000. X is charged with this offence on the grounds that he dumped his garden
refuse in a public park. X relies on the defence of impossibility. He alleges that because
there are no designated places in the vicinity where he can dump his refuse, it was impossible for him not to commit this offence. Discuss critically the merits of his defence.
Feedback
5
X's defence has no merit. The defence of impossibility cannot be raised in cases where certain
conduct is prohibited by law. The defence may be pleaded only if the conduct that forms the
basis of the charge consists in an omission. In other words, if the provision stipulates "You
may not ...", the defence of impossibility cannot be raised. Conversely, if it stipulates "You
must ..." the defence may be raised. Students often have difficulty in understanding this. The
basis of the charge against X was not a failure (omission) to do something. A positive act
(commissio) by X formed the basis of the charge. Also read the leading case in this regard,
namely the decision in Leeuw.
42
GLOSSARY
actus reus
223
commissio
225
omissio
226
commission, that is, active conduct
omission, that is, passive conduct or a failure to act positively
227
228
vis absoluta
229
vis compulsiva
231
234
an act that corresponds to the definitional elements and is unlawful
224
230
232
absolute compulsion
relative compulsion
SUMMARY
1. The first general requirement of criminal liability is that there must be conduct (act or
omission) on the part of X.
2. Conduct is voluntary if X is capable of subjecting his bodily movements to his will or
intellect.
3. Factors that exclude the voluntary nature of an act are absolute force, natural forces and
automatism.
4. "Acts" committed in a situation of automatism are committed in a mechanical fashion, such
as in the following instances: reflex movements, sleepwalking, muscular movements such
as an arm movement while a person is asleep, and when a person suffers an epileptic fit.
5. The examples mentioned in (4) are all cases of sane automatism, where a sane person
momentarily behaves involuntarily. Sane automatism should be distinguished from
insane automatism. In the case of insane automatism, the above conditions are the result
of mental illness or defect. In cases of insane automatism, X is dealt with in accordance
with the rules relating to mental illness.
6. An omission is punishable only if X is under a legal duty to act positively. The general
rule is that there is a legal duty to act positively if the legal convictions of the community
require X to do so.
7. In practice, a number of specific instances are recognised in which there is a legal duty
to act positively. There are eight such instances. See the list in 3.4.1.2 above.
8. An omission is voluntary if it is possible for X to perform the positive act. If it is not possible
for him to perform the act, he may rely on the defence of impossibility.
9. For the defence of impossibility to be successful,
a. the legal provision that is infringed must place a positive duty on X
b. it must be objectively impossible for X to comply with the relevant legal provision
c. X must not himself be the cause of the impossibility
Further reading
For more information on the act, read:
• Burchell Principles of Criminal Law (2016) 77–94.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 55–63.
43
CRW2601/1
Self-assessment
3
(1) Define the concept of an "act" and provide practical examples of an act in the legal
sense of the word.
(2) What is the difference between the meaning of the word "act", as this word is used in
everyday parlance, and the technical meaning it bears in criminal law?
(3) Briefly explain the meaning of the requirement that the act must be a human act.
(4) Fill in the missing words: Conduct is voluntary if X is capable of subjecting his ... … to
his ... or ...
(5) Distinguish between the concepts "voluntary" and "willed".
(6) Name three factors that exclude the voluntary nature of an act.
(7) Explain the meaning of "absolute force", as well as the difference between this type of
force and relative force.
(8) Give examples of muscular movements or "events" that take place in a state of automatism.
(9) Give three examples of automatism from our case law.
(10) X causes an accident while suffering an epileptic fit. The evidence reveals that he has
been having epileptic fits for the past 13 years and that he had insufficient grounds for
assuming that he would not suffer one again on the particular day. Could X be convicted
of negligent driving? Give reasons for your answer.
(11) Sort the following phrases under the headings "Sane automatism" and "Insane automatism" and write them in the correct columns.
(a) State of automatism is due to mental illness or defect.
(b) A sane person momentarily acts involuntarily.
(c) Onus is on the state to prove that act was voluntary.
(d) Onus is on the accused to prove that he suffered from a mental illness or defect.
(e) X is acquitted because he is deemed not to have acted.
(f) In terms of section 78(6) of the Criminal Procedure Act 51 of 1977, X is found not
guilty, but he loses his freedom in that he is referred to a mental hospital.
Sane automatism
Insane automatism
List and discuss the eight instances in which it is assumed in practice that a person
has a legal duty to act positively.
(12) The law cannot expect somebody to do the impossible. Name the three requirements for
the defence of impossibility to succeed. Refer to examples and case law.
44
LEARNING UNIT 4
The definitional elements and causation
Contents
Learning outcomes
4.1 Background
4.2 The definitional elements
4.3 Causation
4.3.1 The difference between formally and materially defined crimes
4.3.2 The issue of causation
4.3.3 The principles to be applied in determining causation
4.3.4 The courts' approach to legal causation
4.3.5 Own view – theory of adequate causation preferable
4.3.6 Application of principles to stated sets of facts
4.3.7 Examples from decisions
4.3.8 Causation: a summary
Glossary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• isolate the particular requirements that apply to a certain type of crime (in other words,
the "definitional elements" of a specific crime)
• deduce from the definitional elements of a specific crime whether that crime is a materially defined crime or a formally defined crime
• determine whether a certain act is the cause of a certain proscribed result; more particularly, you should be able to determine whether a certain act is
– a factual cause of a result, by applying the conditio sine qua non theory
– a legal cause of a result, by applying the various theories of legal causation
45
CRW2601/1
4.1
BACKGROUND
In the previous study unit, we discussed the first element of criminal liability, namely the requirement of an act. In this study unit, we will discuss the second element of criminal liability.
In terms of this element, the act or conduct must comply with the definitional elements of the
particular crime with which X is charged. We will first consider the meaning of the concept
"definitional elements". Thereafter, we will discuss a very important requirement that forms part
of the definitional elements of certain (but not all) crimes, namely the causation requirement.
235
4.2
THE DEFINITIONAL ELEMENTS
236
(Criminal Law 59-78)
The definitional elements signify the concise description of the requirements set by the
law for liability for a specific type of crime. In this context, "requirements" does not mean the
general requirements applying to all crimes (e.g. voluntary conduct, unlawfulness, criminal
capacity and culpability), but the particular requirements applying only to a certain type of
crime. The definitional elements of a crime contain the model or formula that enables both
an ordinary person and a court to know which particular requirements apply to a certain
type of crime. Snyman uses the expression "definition of the proscription" as a synonym
for "definitional elements", but we prefer the expression "definitional elements". We can also
explain the meaning of "definitional elements" as follows: all legal provisions creating crimes
may be reduced to the following simple formula: "Whoever does X commits a crime." In this
formula, X is nothing other than the definitional elements of the particular crime.
237
46
The definitional elements always contain a description of the kind of act that is prohibited
(e.g. "possession", "sexual penetration", "the making of a declaration" or "the causing of a
certain state of affairs"). The word "act", as used in criminal law, always means ''the act set out
in the definitional elements". However, the definitional elements are not limited to merely a
description of the type of act required. After all, the law does not prohibit possession, sexual
penetration or the making of a declaration as such. It prohibits the possession of particular,
circumscribed articles (such as pornographic photographs or prohibited drugs), or sexual
penetration between people who, on account of consanguinity, may not marry each
other (incest), or the making of a statement that is false and made under oath in the
course of a judicial process (perjury). Thus the definitional elements contain not merely a
description of the kind of act (e.g. possession, sexual penetration) that is prohibited, but also
a description of the circumstances in which the act must take place, such as the particular
way in which the act must be committed (e.g. "forcibly", in robbery); the characteristics of
the person committing the act (e.g. "a person who owes allegiance", in high treason); the
nature of the object in respect of which the act must be committed (e.g. possession of
"cocaine", or "movable corporeal property", in theft); sometimes a particular place where
the act has to be committed (e.g. parking "on a yellow line"); or a particular time when or
during which the act has to be committed (e.g. "on a Sunday").
238
In the second Criminal Law module, the most important specific crimes will be discussed.
In that part of the study, we will discuss the definitional elements of each separate crime in
some detail.
239
Don't confuse the "definitional elements" with "the definition of the crime". The
definition of the crime contains the definitional elements as well as a reference to
the requirements of unlawfulness and culpability. The definitional elements, on
the other hand, do not contain a reference to the requirements of unlawfulness
and culpability. The definitional elements of murder are "to cause somebody else's
death". The definition of murder is "the unlawful, intentional causing of somebody
else's death".
X's act must be a realisation or fulfilment of the definitional elements. At this stage of the
enquiry, we have to ascertain whether the requirements set out in the definitional elements
relating to, for example, the subject, object, time, place or method of execution of the act
have been complied with.
240
4.3
CAUSATION
(Criminal Law 65-78; Reader 38-51)
241
4.3.1
The difference between formally and materially defined crimes
Crimes may be divided into two groups according to their definitional elements, namely
formally defined crimes and materially defined crimes. In the case of formally defined crimes,
the definitional elements proscribe a certain type of conduct (commission or omission),
irrespective of what the result of the conduct is. Examples of crimes falling into this category
are perjury and the possession of drugs.
242
In the case of materially defined crimes, on the other hand, the definitional elements do
not proscribe a specific conduct, but rather any conduct that causes a specific condition.
243
47
CRW2601/1
Examples of this type of crime are murder, culpable homicide and arson. Let's consider the
example of murder. Here, the act consists in causing a certain condition, namely the death
of another person. In principle, it does not matter whether the perpetrator (X) stabbed
the victim (Y) with a knife, shot her with a revolver or poisoned her. The question is simply
whether X's conduct caused Y's death, irrespective of what the particular conduct leading
thereto was. This category of crimes is sometimes concisely referred to as "result crimes".
Materially defined crimes are also known as "consequence crimes".
Note that in both formally and materially defined crimes, there must be an act.
In materially defined crimes, the act consists of, for example, stabbing a knife into Y's
chest (which causes Y's death), or firing a shot at her, which causes her death.
4.3.2
The issue of causation
When dealing with materially defined crimes, the question that always arises is whether there is
a causal link (or nexus) between X's conduct and the prohibited result (for example, Y's death).
244
Please note the spelling of the word "causal" (as in "causal link"). Many students regularly misspell it, by writing "casual link" instead of "causal link". (The word "causal" is
derived from "cause".) If you write "casual" instead of "causal" in the examination, we
will penalise you!
In the vast majority of cases of materially defined crimes that come before the courts, determining whether X's act was the cause of the prohibited condition does not present any
problems. If X shoots Y in the head with a revolver, or stabs her in the heart with a knife, and
Y dies almost immediately, and if nothing unusual (such as a flash of lightning) that might be
shown to have occasioned the death occurs, nobody will doubt that X has caused Y's death.
However, the course of events might sometimes take a strange turn, in which case it might
become difficult to decide whether X's act was the cause of Y's death.
245
Consider, for example, the following sets of facts:
246
1. X, wishing to kill Y, shoots at her, but misses. In an attempt to escape X, Y runs into a
building. However, shortly before she runs into the building, Z, who has nothing to do
with X, planted a bomb inside the building because she bears a grudge against the owner
of the building. The bomb explodes, killing Y. Is X's act the cause of Y's death? (Shouldn't
Z's act rather be regarded as the cause?)
2. X assaults Y and breaks her arm. Z, who has witnessed the assault, decides to help Y by
taking her to hospital for treatment. She helps Y get onto the back of her truck and drives
off. However, Z drives recklessly and Y becomes so afraid that Z may have an accident
that she jumps off the back of the moving truck. In jumping off the truck, she bumps her
head against a large stone, as a result of which she dies. Who has caused Y's death ― X, Z
or perhaps even Y, through her own conduct?
3. Following X's assault upon Y, Y dies after the ambulance transporting her to the hospital
crashes into a tree, or after she is struck by lightning on the spot where she is lying after
the assault, or because she suffers from bipolar disorder, and the assault induces her to
commit suicide. In such circumstances, could we still allege that X has caused Y's death?
Determining causation in situations such as those described immediately above is one of
the most vexed questions in criminal law. However, the courts have developed certain basic
principles concerning this matter, which they regularly apply. In order to limit the following
discussion, the question of causation will be discussed only in the context of the crimes of
247
48
murder and culpable homicide, since problems in connection with causation in criminal law
mostly arise in the context of these crimes.
Since the examples and cases that will be discussed below deal with killing, it is necessary
to emphasise, right at the outset, that "to cause the death" actually means to cause death
at the time when, and in the circumstances in which, it took place in the particular case. All
people die at some time; therefore, when trying to establish whether the act caused the
death, the question actually amounts to whether the act precipitated the death. Therefore,
the fact that Y suffered from an incurable disease from which she would soon have died in
any event does not afford X a defence if she stabbed and killed Y only a few days (or even
hours) before she would, in any event, have died. (See Makali 1950 (1) SA 340 (N); Hartmann
1975 (3) SA 532 (C) 534.)
248
4.3.3
The principles to be applied in determining causation
4.3.3.1 Basic principle
The basic principle relating to causation applied by the courts is the following: In order to find
that there is a causal link between X's act and the prohibited condition (hereafter referred to
as Y's death) (that is, in order to find that X's act caused Y's death), two requirements must
be met: first, it must be clear that X's act was the factual cause of Y's death; secondly, it must
be clear that X's act was the legal cause of Y's death.
249
X's act is the factual cause of Y's death if it is a conditio sine qua non for Y's death, that is, if
there is "but-for causation" or a "but-for" link between X's act and Y's death. (We will explain
this in a moment.) If this requirement has been met, we may speak of factual causation.
250
X's act is the legal cause of Y's death if, in terms of policy considerations, it is reasonable
and fair that X's act be deemed the cause of Y's death. If this requirement has been met, we
may speak of legal causation.
251
252
253
Briefly, the basic formula may be expressed as follows:
We will now proceed to explain the above concepts in more detail.
4.3.3.2 Factual causation – conditio sine qua non
254
X's act is the factual cause of Y's death if it is a conditio sine qua non for Y's death.
(The word "conditio" is pronounced "kon-dee-tee-ho", not "kon-dee-show".)
49
CRW2601/1
Conditio sine qua non literally means "a condition or antecedent (conditio) without (sine)
which (qua) not (non)"; in other words, an antecedent (act or occurrence) without which the
prohibited situation would not have materialised. A convenient English equivalent of this
concept is but-for causation (or, more precisely, but-for not causation). For an act or event
to be a but-for cause, we must be able to say that but for the occurrence of the act or event,
the prohibited condition would not have happened.
255
Another way of stating the same test (i.e. the conditio sine qua non test) is by asking what
would have happened if X's act had not occurred. If it is clear that in such a case the result
(Y's death) would not have materialised, then X's act is a factual cause of Y's death.
256
Definition of conditio sine qua non theory:
An act is a conditio sine qua non for a situation if the act cannot be thought away without
the situation disappearing at the same time.
Therefore, in applying this formula, a court must, for a moment, assume that the act in
question had not occurred ("think away" the act), and then consider whether the result would
nevertheless have occurred. In order to determine whether you understand the application of
this theory, we suggest that you turn back to the discussion under 4.3.2 above, and consider
whether X's act in the three sets of facts described under that subheading can be regarded
as the conditio sine qua non, or factual cause, of Y's death. What is your answer? If your answer
is ''no", you do not understand the application of this theory. The correct answer is that X's
act in all three examples qualifies as the factual cause of Y's death! We advise you to make
sure that you fully understand the application of this theory before you read any further. At
a later stage in this study unit, we will consider these examples once again.
That the conditio sine qua non test must be applied in order to determine factual causation is
clearly borne out by the case law. See, for example, Makali 1950 (1) SA 340 (N), Mokoena 1979
(1) PH H 13 (A) and Minister van Polisie v Skosana 1977 (1) SA 31 (A) 44. In Daniëls 1983 (3) SA
275 (A), the Appeal Court decided that factual causation is determined on the basis of the
conditio sine qua non theory. This decision will be discussed later in this study unit.
257
If we apply only the conditio sine qua non test (or theory), we could identify a seemingly vast
number of events as causes of Y's death. If X stabs Y with a knife and kills her, then it is not
only the stabbing that is conditio sine qua non for Y's death, but also, for example, the manufacture of the knife, its sharpening and its sale by the shop owner. Even negative factors or
antecedents will constitute causes of Y's death, for example, the fact that Y did not evade X's
blow, or the fact that Z neglected to warn Y of X's evil intention. We could even allege that
if it were not for X's parents, X would not have existed, and, therefore, the parents are also a
cause of Y's death. The same could be said about X's grandparents, and in this vein, we could
go back all the way to Adam and Eve. (Indeed, some commentators have cynically referred
to the conditio sine qua non-formula as "Adam and Eve causation".)
258
4.3.3.3 Legal causation general
It is exactly because of the wide scope of the conditio sine qua non test (i.e. the large number
of factors that may be identified as a cause of Y's death in terms of this test) that it is necessary to apply a second criterion by which we may limit the wide range of possible causes of
Y's death. This second criterion is usually described as the test to determine legal causation.
The idea behind this second criterion is the following: When a court is called upon to decide
259
50
whether X's conduct caused Y's death, the mere fact that X's conduct is a conditio sine qua non
for Y's death is insufficient as a ground upon which to base a finding of a causal link. Other
factors besides X's conduct may equally qualify as conditiones sine qua non for Y's death. When
searching for the legal cause (or causes) of Y's death, a court eliminates those factors that,
although they qualify as factual causes of Y's death, do not qualify as the cause (or causes)
of Y's death according to the criteria for legal causation (which will be set out hereunder).
In the legal literature, certain specific tests to determine legal causation have evolved, such
as those that determine the "proximate cause", the "adequate cause", or whether an
event constituted a ''novus actus interveniens". We will consider these more specific criteria
for legal causation in a short while. At the outset, however, it should be emphasised that,
generally, the courts are reluctant to choose one of these specific tests as a yardstick to
be employed in all cases in which legal causation has to be determined, to the exclusion of
all other specific tests. Sometimes they rely on one, and sometimes on another of these tests,
according to whether a particular test would, in their opinion, result in an equitable solution. Sometimes they may even base a finding of legal causation on considerations outside
these more specific tests. Before elaborating further on this open-ended approach to legal
causation by the courts, we will first consider the different specific criteria that have been
formulated to determine legal causation.
260
4.3.3.4 Theories of legal causation
The three most important specific tests or theories to determine legal causation, which we
will briefly discuss below, are the following: the individualisation theories, the theory of
adequate causation and the novus actus interveniens theory.
261
a.
The individualisation theories
Definition of the individualisation theories:
According to the individualisation theories (or tests), we must look, among all the conditions
or factors that qualify as factual causes of the prohibited situation (Y's death), for that one
that is the most operative and regard it as the legal cause of the prohibited situation.
The objection to this approach is that two or more conditions are often operative in equal
measure, for example, where X bribes Z to commit a murder, which Z commits while W stands
guard in order to warn Z, should the police arrive. In a situation such as this, where three
different people have acted, we cannot regard the act of one as the only cause of death, to
the exclusion of the acts of the other two. Today the idea behind this test finds little support,
and in Daniëls 1983 (3) SA 275 (A), the majority of the Appeal Court judges who discussed
the question of causation refused to accept that an act can be the legal cause of a situation
only if it can be described as the "proximate cause" (see paras 314C, 331A and 333G).
262
263
b.
The theory of adequate causation
Because of the vagueness and ineffectiveness of the individualisation theories, many writers
have refused to attempt to solve problems of legal causation by looking for the decisive, most
effective or proximate condition. Instead, they have preferred to base a causal relationship on
generalisations that may be made by an ordinary person regarding the relationship between
a certain type of event and a certain type of result, and on the contrast between the normal
and the abnormal course of events.
264
51
CRW2601/1
This generalisation theory (a term we use to distinguish it from the individualisation theories)
is known as the theory of adequate causation.
265
Definition of the theory of adequate causation:
An act is a legal cause of a situation if, according to human experience, in the normal
course of events, the act has the tendency to bring about that kind of situation.
It must be typical of such an act to bring about the result in question. To simplify the matter
further, we could aver that the act is the legal cause of the situation if it can be said that
"that comes of doing such a thing". If this test can be met, it is said that the result stands in
an "adequate relationship" to the act. (In Loubser 1953 (2) PH H190 (W), the court applied
this test.) The existence or absence of an adequate relationship can be explained as follows:
To strike a match is to perform an act that tends to cause a fire, or that, in normal circumstances, has the potential to do so. If, therefore, X strikes a match and uses the burning
match to set a wooden cabin alight, we can aver, without difficulty, that her act caused
the cabin to burn down. However, the question arises whether her act can be described as
causing the cabin to burn down in the following circumstances: All X does is to call a dog.
The dog jumps up and, in so doing, frightens a cat. The frightened cat jumps through a
window of the cabin, knocking over a lit candle, which, in turn, sets the whole cabin alight.
If we apply the theory of adequate causation, it is easy to conclude that in this situation X's
act was not the legal cause of the burning down of the cabin, because all that X did was
to call a dog, and merely calling a dog is not an act that, according to human experience
in the normal course of events, has the tendency to cause a wooden cabin to burn down.
c. Novus actus interveniens
This expression means ''new intervening event" and is used to indicate that between X's
initial act and the ultimate death of Y, another event, which breaks the chain of causation,
has taken place, preventing us from regarding X's act as the cause of Y's death.
266
Breaking the chain of causation
267
52
268
EXAMPLES
y X administers a poison to Y, which will slowly kill her. Shortly afterwards, Z, who also bears
a grudge against Y, and who acts completely independently of X, shoots Y, killing her. It
is then Z's act, and not that of X, that is the cause of Y's death.
y X inflicts a non-lethal wound to Y's head. Y is taken to hospital by ambulance. On the
way to hospital, owing to the gross negligence of the ambulance driver, the ambulance is
involved in an accident in which Y is killed (or, alternatively, Y is fatally struck by lightning
right in front of the hospital entrance). (See illustration below.)
Some authorities regard legal causation as consisting in the absence of a novus actus interveniens. Formulated more completely, according to this approach, X's act is regarded in
law as the cause of Y's death if it is a factual cause of the death and there is no novus
actus interveniens between X's act and Y's death (see also S v Counter 2003 (1) SACR 143
(SCA)).Unfortunately, our case law contains no precise description of the requirements with
which an act must comply to qualify as a novus actus (or nova causa). In our view, the following definition of a novus actus interveniens is a fair reflection of how our courts understand
this concept.
269
An act is a novus actus interveniens if it constitutes an unexpected, abnormal or unusual
occurrence; in other words, an occurrence that, according to general human experience,
deviates from the normal course of events, or that cannot be regarded as a probable
result of X's act.
With the above in mind, you will note that the novus actus interveniens test differs very slightly
(if it all) from the test or theory of adequate causation. This similarity becomes even more
apparent if we consider the following well-established rule: an act or an event can never
qualify as a novus actus if X previously knew or foresaw that it might occur. If X gives Y, who
suffers from bipolar disorder, a gun, and Y shoots and kills herself with it, but X previously
knew or foresaw that Y might kill herself with it, X will not be able to rely on a defence that
alleges that Y's act of shooting herself was a novus actus.
270
53
CRW2601/1
4.3.4
The courts' approach to legal causation
The courts do not single out a specific theory of legal causation as the only correct one to be
applied in all circumstances. In the leading cases of Daniëls 1983 (3) SA 275 (A) and Mokgethi
1990 (1) SA 32 (A), the Appellate Division stated that, in deciding whether a condition that is
a factual cause of the prohibited situation should also be regarded as the legal cause of that
situation, a court must be guided by policy considerations.
271
The policy that the courts adopt is to strive to reach a conclusion that would not exceed the
limits of what is reasonable, fair and just. In deciding what a reasonable and fair conclusion
is, a court may make use of one or more of the specific theories of legal causation (such as
proximate cause or novus actus). In fact, in most cases, the courts apply one of these theories. However, in Mokgethi supra, the Appellate Division held that it is wrong for a court to
regard only one specific theory (e.g. proximate cause) as the correct one to be applied in
every situation, thereby excluding from future consideration all the other specific theories
of legal causation. A court may even base a finding of legal causation on considerations
outside these specific theories.
272
Earlier in this study unit, we provided you with a diagram containing the basic formula or
premise for determining causation. In the diagram that follows, the overall field of enquiry
involved in the determination of causation is set out:
273
4.3.5
Own view – theory of adequate causation preferable
Assuming for a moment that we are not bound by the courts' open-ended approach to legal
causation, we submit that of the different specific theories of legal causation, the theory of
adequate causation is the best to determine legal causation. We have already pointed out
the criticism of the individualisation theories, and in Daniëls 1983 (3) SA 275 (A), of the three
judges of appeal who had to decide the issue of causation, two (Jansen JA and Van Winsen
AJA) refused to accept that in our law, criminal liability is necessarily based on proximate cause
(which is, perhaps, the best-known of the individualisation theories). We have also pointed out
that the novus actus criterion does not differ essentially from the theory of adequate causation,
both emphasising that a distinction should be drawn between consequences normally to
be expected from the type of conduct in which X has engaged, and consequences that we
would not normally expect to flow from such conduct.
274
54
4.3.6
Application of principles to stated sets of facts
Let's now briefly apply the above-mentioned principles to the hypothetical situations described in 4.3.2 above.
275
In the first set of facts, X's shooting at Y was surely the factual cause of Y's death, because if
we apply the conditio sine qua non theory, it is clear that if X did not shoot at Y, Y would not
have run into the building where the bomb exploded. The next step is to ascertain whether
X's act was also the legal cause of Y's death. A court would in all probability decide this question in the negative. The proximate or decisive cause of death was not X's shooting, but the
explosion of the bomb planted by Z. It is also doubtful whether X's act can be described as the
legal cause of Y's death in terms of the theory of adequate causation, because in the normal
course of events, running into a building for safety would not result in being blown up by a
bomb. The bomb explosion was an unexpected and unusual event and could, therefore, also
be regarded as a novus actus interveniens. Accordingly, X's act would most likely not be regarded
as the legal cause of Y's death. X could then, at most, be convicted of attempted murder.
276
In the second set of facts, X's act was also a factual cause of Y's death. A court would most
likely hold that Z's reckless driving deviated from the conduct normally expected of a driver,
and that it constituted a novus actus, so that X's assault would not be regarded as the legal
cause of Y's death.
277
The third set of facts describes a subsequent event that qualifies as a novus actus, from which
it follows that X's act would not be regarded as the legal cause of Y's death.
278
4.3.7
Examples from decisions
4.3.7.1 Assisted suicide – the Grotjohn decision
What will the position be if X encourages Y to commit suicide, or provides Y with the means
of doing so, and Y indeed commits suicide? In this kind of situation, the last act that led to Y's
death was her (Y's) own conscious and voluntary act. Does this mean that there is no causal
link between X's conduct and Y's death?
279
Before 1970, there were a number of inconsistent decisions regarding this question, but
the decision of Grotjohn 1970 (2) SA 355 (A) brought more clarity to the issue. In this case, X
provided his crippled wife with a loaded rifle so that she could shoot and kill herself, should
she wish to do so; this she then did. X was acquitted. The state appealed to the Appellate
Division on a question of law, and the Appellate Division held that the mere fact that the
last act causing the victim's death was the victim's own, voluntary, non-criminal act did not
necessarily mean that the person handing the gun to the victim was not guilty of any crime.
It would therefore be incorrect to assume that there can be no causal link in this kind of situation. If Y's final act is the realisation of the very purpose X had in mind, Y's act can never be
regarded as a novus actus (Hibbert 1979 (4) SA 717 (D)).
280
4.3.7.2 The Daniëls decision
In Daniëls 1983 (3) SA 275 (A), X shot Y in the back with a revolver. Y fell to the ground, but
was not killed. However, he was wounded seriously enough to die if he not receives
medical treatment within 30 minutes. Shortly after Y fell to the ground, Z appeared on the
scene and shot Y in the ear. X and Z had not previously agreed to shoot Y – in other words,
they acted independently of each other. Z's shot was the immediate cause of Y's death, and
281
55
CRW2601/1
there was no doubt that there was a causal link between Z's shot and Y's death. The question
was whether X also caused Y's death.
Jansen JA and Van Winsen AJA held that X's act was indeed a cause of Y's death, because it
was not merely a conditio sine qua non of Y's death, but was also a legal cause of his death.
Jansen JA applied the conditio sine qua non theory as follows: If X had not shot Y in the back,
and he (Y) had not fallen to the ground as a result of these shot wounds, Z would not have
had the opportunity to shoot Y in the head, thereby wounding him fatally. X's act was therefore an indispensable condition and factual cause of Y's death. As far as legal causation is
concerned, these two judges were of the opinion that there were no policy considerations
exonerating X from liability for what had resulted in accordance with his intention. Z's act
of shooting Y in the ear was not a novus actus interveniens. It cannot be accepted that in our
law, criminal liability is necessarily based on proximate cause.
282
However, a third judge of appeal who heard the appeal, Trengove JA, held that the shots fired
by X at Y's back had not been the cause of Y's death, because of the shot in the head that
hit Y thereafter. According to this judge, the shot to the head was a novus actus interveniens
since, according to his interpretation of the evidence, the person who fired it acted completely
independently of X; it was this person's act (and not that of X) that caused Y to die when he
did. According to Trengove JA, X was guilty of attempted murder only. (The other two judges
of appeal who heard the appeal did not deal with the question of causation since, according to their interpretation of the evidence, X and Z had previously communicated with each
other, and had the common purpose to murder Y. According to these two judges, Y's death
had been caused by the joint conduct of X and Z.)
283
4.3.7.3 The Mokgethi decision
Read
Read the following decision in the Reader: Mokgethi 1990 (1) SA 32 (A).
In Mokgethi 1990 (1) SA 32 (A), X shot a bank teller (Y) in the back during a robbery, as a result
of which Y became a paraplegic and was confined to a wheelchair. Y's condition improved
to such an extent that later he resumed his work at the bank. His doctor instructed him to
shift his position in the wheelchair regularly in order to prevent pressure sores from developing on his buttocks. He failed to shift his position often enough, with the result that serious
pressure sores and accompanying septicaemia developed, causing his death. He died more
or less six months after he had been shot.
284
The court decided that the wounding of Y had been a conditio sine qua non of his death, but that
it could not be regarded as a legal cause of his death. In other words, there was factual causation but no legal causation. The court decided that in this case, none of the ordinary theories
of legal causation (absence of a novus actus interveniens, the individualisation theories and
the theory of adequate causation) could be applied satisfactorily; on a basis of policy considerations, the court had to determine whether a sufficiently close link existed between the act
and the result. However, the court added that in applying the more "flexible criterion", namely
policy considerations, the above-mentioned theories of legal causation could have a subsidiary
value. The court applied this rule to the facts and found that Y's own unreasonable failure
had been the immediate cause of his death and that X's act had been too remote from
the result to lead to criminal liability. Therefore, X was found guilty of attempted murder only.
285
56
4.3.7.4 Negligent medical treatment – the Tembani decision
Read
Read the following decision in the Reader: Tembani 2007(1) SACR 355 (SCA).
In Tembani 2007 (1) SACR 355 (SCA), X had been convicted of murder. The evidence showed
that he had shot the victim (Y) twice with the intention to kill. One bullet entered her chest
and penetrated her right lung, diaphragm and abdomen, perforating the duodenum. Y
was admitted to hospital on the night of the shooting. The medical personnel cleaned the
wounds and gave her antibiotics. The next day she vomited and complained of abdominal
pains. Those were signs that she was critically ill. She was nevertheless left insufficiently attended to in the ward, and four days later contracted an infection of the abdominal lining.
Only at that stage was she treated sufficiently. However, it was already too late to save her
life. She died 14 days later of septicaemia, resulting from the gunshot wound to the chest
and the abdomen.
286
X appealed against his conviction of murder. The question before the Supreme Court of Appeal was whether an assailant who inflicts a wound that would be fatal without treatment,
but that is easy to treat, can escape liability for the victim's death because the medical treatment that the victim, in fact, received was substandard and negligent. The court had no
problem finding that X's act was the factual cause (conditio sine qua non) of Y's death. The
court, however, had to determine whether X was also the legal cause of Y's death. The crucial
issue before the court was whether negligent medical care can be regarded as a new,
intervening cause that exempts the original assailant (X) from liability.
287
The court (at para 25) held that the deliberate infliction by X of an intrinsically dangerous
wound to Y, from which Y was likely to die without medical intervention, must generally
lead to liability by X for the ensuing death of Y. In the court's view, it was irrelevant whether
the wound was readily treatable, and even whether the medical treatment given later
was substandard or negligent. X would still be liable for Y's death. The only exception
would be if Y had recovered to such an extent at the time of the negligent treatment
that the original injury no longer posed a danger to her life.
288
According to the court (at par 26-27), this approach was justified on the following two policy
considerations: Firstly, an assailant who deliberately inflicted an intrinsically fatal
wound consciously embraced the risk that death might ensue. The fact that others
might fail, even culpably, to intervene to save the injured person did not, while the wound
remained fatal, diminish the moral culpability of the perpetrator. Secondly, in a country
where medical resources were not only sparse but also badly distributed, it was wrong
to impute legal liability on the supposition that efficient and reliable medical attention would be accessible to a victim, or to hold that its absence should exculpate an
assailant inflicting an intrinsically fatal wound from responsibility for the victim's
death. The court held that in South Africa, improper medical treatment was neither abnormal
nor extraordinary. Therefore, negligent medical treatment did not constitute a novus actus
interveniens that exonerated the assailant from liability while the wound was still intrinsically
fatal. The conviction of X for murder was therefore upheld. The court distinguished this case
from the Mokgethi decision (supra), where the eventual fatal septicaemia was caused not
by the original wound, but by the deceased person's own unreasonable failure to follow
medical instructions.
289
57
CRW2601/1
Activity 4.1
In each of the following sets of facts, consider whether X's act is the cause of Y's death:
(1) Y feels depressed and threatens to commit suicide. X, who harbours a grudge against
Y, hands her a loaded firearm, stating that she may shoot and kill herself if she so
wishes. Y takes the firearm, and shoots and kills herself.
(2) X, who is very poor, reads a newspaper report about a man who had been caught
by a crocodile in a river in Botswana. She persuades her uncle Y, who is very rich and
whose heir she is, to go on a safari to Botswana. She also encourages her uncle to take
a boat trip on the river, hoping that he will be killed by a crocodile. Y undertakes the
safari. He also goes out on a canoe on the river. The canoe is unexpectedly overturned
by a hippo. Y falls into the water. A crocodile catches and kills him.
(3) X tries to stab Y, intending to murder her. Y ducks and receives only a minor cut on
the arm. However, infection sets in, and Y visits a doctor. The doctor gives her an
injection, and tells her to come back the following week for two more injections. The
doctor warns Y that she may die if she fails to come back for the other two injections.
Y fails to go back to the doctor, reasoning that her body is strong enough to fight
the infection. She dies as a result of the infection.
(4) X shoots Y in the chest, intending to murder her. The bullet wound is of such a serious
nature that Y will die if she does not receive medical treatment. Y is admitted to
hospital, but because the nursing staff is on a general strike, she receives inadequate
medical treatment. The wound becomes infected. Although she is eventually treated
for the infection, she dies after a period of two weeks.
Feedback
6
(1) You probably recognise these facts as being similar to those in the Grotjohn case.
In that case, the Appellate Division held that the mere fact that the last act was the
victim's own voluntary act did not mean that there was no causal relationship between
X's act and Y's death. X's act (in the Grotjohn case) was a conditio sine qua non of Y's
death. Y's last act (her suicide) was not a novus actus interveniens – an unexpected
or unusual event in the circumstances. The court ruled that if X's act was the factual
cause of Y's death, an unusual event that took place after X's act but before Y's death
cannot break the causal link if X had previously planned or foreseen the unusual
turn of events.
(2) X's act can be regarded as a conditio sine qua non of Y's death because if X had not
persuaded Y to undertake the safari, Y would not have undertaken the trip. Therefore,
there was factual causation. However, there was no legal causation. An application
of the theory of adequate causation leads to the same conclusion: being killed by a
crocodile is not an occurrence that, according to general human experience, is to be
expected in the normal course of events during a safari. Merely to hope (as X did) that
the disastrous event would take place cannot be equated with the situation where X
planned or foresaw the occurrence of the event before it took place. According to the
criterion of policy considerations applied in the Mokgethi decision, we may also argue
that it would not be reasonable and fair to regard X's act as the legal cause of Y's death.
(3) If you have read the Mokgethi case, you will immediately recognise these facts, which
were used as an illustration by the court in its judgment. It is clear that X's act is the
factual cause of Y's death: if X had not stabbed Y, she would never have contracted the
infection. In terms of the Mokgethi decision, however, we may argue that X's act was
not the legal cause of Y's death. Y's failure to go back to the doctor was unreasonable
58
and created such an unnecessary life-threatening situation that, legally speaking,
there is not a sufficiently close link between the original stab-wound inflicted by X
and the death of Y.
(4) These facts are similar to those in Tembani. It is clear that X's act is the factual cause of
Y's death (a conditio sine qua non). According to the court in Tembani, X's act can also be
seen to be the legal cause of Y's death. X deliberately inflicted an intrinsically dangerous
wound to Y, which, without medical intervention, would probably cause Y to die. It is
irrelevant whether it would have been easy to treat the wound, and even whether the
medical treatment given later was substandard or negligent. X would still be liable for
Y's death. The only exception would be if, at the time of the negligent treatment, Y had
recovered to such an extent that the original injury no longer posed a danger to her life.
Is X guilty of causing Y’s death?
X shoots Y in the chest, and Y is taken to hospital. While recuperating, Z, a new patient, is
brought onto the ward, and placed in the bed next to Y. The doctor treating Y fails to carry
out essential tests which would have revealed that Z was carrying the COVID-19 virus. Y
contracts the infection from Z, and dies a week later. Who is liable for causing Y’s death?
X or the doctor? What about a scenario where X shoots Y in the abdomen. In hospital, Y
further suffers respiratory problems which necessitates a tracheotomy (an incision in the
windpipe made to relieve an obstruction to breathing). Y remains on life support, and
dies two months afterwards, mainly because his windpipe had become obstructed due
to the narrowing where the tracheotomy had been performed. Is X liable for Y’s death, or
the hospital, or both? Also consider a case where Y is raped by X, and Y is so traumatised
by the act that she commits suicide. Is X liable for Y’s death? What is your opinion?
4.3.8
Causation: a summary
The rules to be applied in determining causation may be summarised as follows:
290
1. In order to find that there is a causal link between X's act and Y's death, X's act must first
be the factual cause and, secondly, the legal cause of Y's death.
2. X's act is the factual cause of Y's death if it is a conditio sine qua non of Y's death, that is,
if X's act cannot be thought away without Y's death (the prohibited result) disappearing
at the same time.
3. X's act is the legal cause of Y's death if a court is of the view that there are policy
considerations for regarding X's act as the cause of Y's death. By "policy considerations",
we mean considerations that would ensure that it would be reasonable, just and fair
to regard X's act as the cause of Y's death.
4. In order to find that it would be reasonable, just and fair to regard X's act as the cause of
Y's death, a court may invoke the aid of one or more specific theories of legal causation.
These theories are the individualisation theories (e.g. proximate cause), the theory of
adequate causation and the novus actus interveniens theory. These theories are merely
aids in deciding whether there is legal causation. The courts do not deem any one of
these theories to be the only correct theory to be applied in every situation. A court may
even base a finding of legal causation on considerations outside these specific theories.
59
CRW2601/1
GLOSSARY
conditio sine qua non
291
novus actus interveniens
293
literally "condition without which not"; in practice,
an"indispensable prerequisite"
292
294
a new intervening event
Further reading
For more information on causation, read:
• Burchell Principles of Criminal Law (2016) 95–113.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 73–90.
4
Self-assessment
(1) Explain the meaning of the term "definitional elements of the crime".
(2) Distinguish between materially and formally defined crimes and indicate in which of
these two groups of crimes the crime of possession of cocaine should be categorised.
(3) Discuss the criterion that our courts apply to determine factual causation.
(4) Explain what you understand by the concept "legal causation".
(5) Define and give a critical evaluation of the theory of adequate causation.
(6) Define and discuss, with reference to decided cases, the theory of novus actus interveniens.
(7) Discuss the decision of the Appeal Court in the Mokgethi case.
(8) Discuss the decision of the Appeal Court in Tembani.
(9) Give a summary of the rules that our courts apply in order to determine causation.
(10) Can X, if she assists Y to commit suicide and is subsequently charged with the murder of
Y, succeed with the defence that there was no causal link between her conduct and Y's
death?
60
LEARNING UNIT 5
Unlawfulness I
Contents
Learning outcomes
5.1 Background
5.2 The meaning of "unlawfulness"
5.2.1 General
5.2.2 Acts that comply with the definitional elements are not necessarily unlawful
- examples
5.2.3 Content of unlawfulness
5.2.4 Unlawfulness distinguished from culpability
5.3 Private defence
5.3.1 Definition of private defence
5.3.2 Requirements of the attack
5.3.3 Requirements of the act of defence
5.3.4 The test for private defence
5.3.5 Exceeding the limits of private defence
Glossary
Summary
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the application of the general criterion of unlawfulness (the boni mores or legal convictions of society) in solving a dispute about the
unlawfulness of a particular act that complies with the definitional elements of a crime,
but not with the requirements of any recognised ground of justification
• determine whether certain conduct falls within the scope of a generally recognised
ground of justification with reference to the general criterion of unlawfulness
• apply the rules pertaining to the ground of justification known as private defence to
the facts of a particular case
61
CRW2601/1
5.1
BACKGROUND
In study unit 1, we stated that the four cardinal requirements for liability for a crime are (1) act
or conduct; (2) compliance with the definitional elements; (3) unlawfulness; and (4) culpability.
We have already dealt with the first two of these requirements. In this study unit, we begin
our discussion of the third requirement, namely unlawfulness. We first discuss the meaning
of "unlawfulness" and, thereafter, the first ground of justification, namely private defence.
296
5.2
THE MEANING OF "UNLAWFULNESS"
(Criminal Law 79-85; Reader 52-55)
297
5.2.1
General
The mere fact that there is an act that corresponds to the definitional elements does not mean
that the person who performs the act is liable for the particular crime. Therefore, satisfying
the definitional elements is not the only general requirement for liability. The next step in
the determination of liability is to enquire whether the act that complies with the definitional
elements is also unlawful.
298
In all probability, a layperson will be of the opinion that once it is clear that the prerequisites
for liability set out thus far (namely that the law prohibits certain conduct as criminal, and that
X had committed an act that falls within the definitional elements) have been complied with,
X will be liable for the crime and may be convicted. However, a person trained in the law will
realise that there are still two very important further requirements that must be complied
with, namely the requirements of unlawfulness and culpability.
299
62
In all probability, the reason a layperson would be unaware of the two last-mentioned requirements is because these are, as it were, "unwritten" or "invisible": what we understand by
"unlawfulness" and "culpability" does not (ordinarily) form part of the "letter" or "visible part"
of the legal provision in question, that is, the definitional elements. Thus, if you consult the
definition of a crime in a statute, you will normally not even come across the word "unlawful"; neither can you necessarily expect to find words by which the culpability requirement
is expressed, such as "intentional" or ''negligent". Nevertheless, a court will never convict a
person of a crime unless it is convinced that the act that complies with the definitional elements is also unlawful and accompanied by culpability – in other words, that the "unwritten"
or "invisible" requirements have also been complied with.
300
5.2.2
Acts that comply with the definitional elements are not necessarily
unlawful – examples
An act that complies with the definitional elements is not necessarily unlawful. This will immediately become clear if we consider the following EXAMPLES:
301
1. In respect of murder, the definitional elements are "the killing of another human being".
Nevertheless, a person is not guilty if he kills somebody in self-defence; his act is then
not unlawful.
2. X inserts a knife into Y's body. Although his act may satisfy the definitional elements of
assault, it is not unlawful if X is a medical doctor who is performing an operation on Y
with Y's permission (consent), in order to cure him of an ailment.
3. X exceeds the speed limit while driving his motorcar. His conduct satisfies the definitional
elements of the crime of exceeding the speed limit. However, if he does so in order to
get his gravely ill child to hospital for emergency treatment (necessity), his conduct is
not unlawful (Pretorius 1975 (2) SA 85 (SWA)).
There are many other examples of conduct that satisfies the definitional elements, but is
nevertheless not unlawful. It is a very common phenomenon that an act that ostensibly falls
within the letter of the law (in other words, that corresponds to the definitional elements)
proves, upon closer scrutiny, not to be contrary to the law, as the examples above illustrate.
In these cases, the law tolerates the violation of the legal norm.
302
5.2.3
Content of unlawfulness
When is conduct that corresponds to the definitional elements not unlawful? In other words,
precisely what is meant by "unlawful" and what determines whether an act is unlawful?
303
1. Grounds of justification
There are a number of cases or situations, well-known in daily practice, where an act that
corresponds to the definitional elements is, nevertheless, not regarded as unlawful. Unlawfulness is excluded because of the presence of grounds of justification. Some well-known
grounds of justification are private defence (which includes self-defence), necessity, consent,
and official capacity. The grounds of justification will subsequently be discussed one by one.
At this point it is tempting simply to define unlawfulness as "the absence of a ground of
justification". However, such a purely negative definition of unlawfulness is not acceptable,
for two reasons:
304
63
CRW2601/1
a.
All jurists agree that there is no limited number (numerus clausus) of grounds of
justification. If this were so, how would they determine the lawfulness or unlawfulness of conduct that does not fall within the ambit of one of the familiar grounds
of justification?
b.
It should be remembered that each ground of justification has its limits. Where
an act exceeds these limits, it is unlawful. What is the criterion for determining the
limits of the grounds of justification?
The answer to this question is found under the next heading.
305
2. Legal convictions of society
Opinions differ on the material content of the concept of unlawfulness. We do not intend
discussing the philosophical arguments underlying the differences of opinion. The current
approach (with which we agree) is the following:
306
Conduct is unlawful if it conflicts with the boni mores (literally "good morals") or legal
convictions of society.
The law must continually strike a balance between the conflicting interests of individuals, or
between the conflicting interests of society and the individual. If certain conduct is branded
unlawful by the law, this means that, according to the legal convictions (or boni mores) of
society, certain interests or values protected by the law (such as life, property or dignity) are
regarded as more important than others (Clark v Hurst 1992 (4) SA 630 (D)). The contents of
the Bill of Rights in Chapter 2 of the Constitution must obviously play an important role in
deciding whether conduct is in conflict with public policy or the community's perception of
justice. The values mentioned in section 1 of the Constitution, namely "human dignity, the
achievement of equality and the advancement of human rights and freedoms", are also of
crucial importance in deciding this issue.
In order to determine whether conduct is unlawful, we must therefore enquire whether
the conduct concerned conflicts with the boni mores or legal convictions of society.
The grounds of justification must be seen as practical aids in the determination of
unlawfulness. They merely represent those situations encountered most often in practice,
which have therefore come to be known as easily recognisable grounds for the exclusion
of unlawfulness. They do not cover the entire subject field of this discussion, namely of the
demarcation of lawful and unlawful conduct.
307
Further reading
In Fourie 2001 (2) SACR 674 (C), the facts were the following: X was a regional court
magistrate, resident in George. He had to preside at the sessions of the regional court in
Knysna. The court's sessions commenced at 9:00. Because of certain circumstances, he
left George for Knysna in his motorcar somewhat late on that particular day. On the road
between George and Knysna, he was caught in a speed trap, which showed that he had
exceeded the speed limit of 80 km/h, which applied to that part of the road. On a charge
of exceeding the speed limit, he pleaded not guilty. His defence was that although he
exceeded the speed limit, his act was not unlawful. He argued that although not one of
the recognised grounds of justification, such as private defence, was applicable to the
case, his act should nevertheless be regarded as lawful on the following ground: the act
was not in conflict with the legal convictions of the community, because by merely striving to arrive at the court on time, he drove his car with the exclusive aim of promoting
64
the interests of the administration of justice. He did not seek to promote his own private
interests, but those of the state, and, more particularly, those of the administration of justice
The court dismissed this defence. If this defence had been valid, it would have opened
the floodgates to large-scale unpunishable contraventions of the speed limits on our
roads. Many people would then be entitled to allege that since they would otherwise be
late for an appointment in connection with a service they render to the state, they are allowed to contravene the speed limit. In the course of the judgment, the court confirmed
the principle set out above, namely that the enquiry into unlawfulness is preceded by an
enquiry into whether the act complied with the definitional elements, and also that the
test to determine unlawfulness is the boni mores or legal convictions of the community.
308
From what has been said above, it is clear that we have to distinguish between
1. an act that complies with the definitional elements
and
2. an act that is unlawful
309
An act that complies with the definitional elements is not necessarily unlawful. It is
only "provisionally" unlawful. Students often confuse the two concepts. One of
the reasons for the confusion is that for the layperson, the word "unlawful" probably
means only that the act is an infringement of the letter of the legal provision in question (i.e. the definitional elements). You can avoid this confusion by always using the
expression "without justification" as a synonym for "unlawful": an act complying with
the definitional elements is unlawful only if it cannot be justified.
5.2.4
Unlawfulness distinguished from culpability
Unlawfulness is usually determined without reference to X's state of mind. Whether he thought
that his conduct was lawful or unlawful is irrelevant. What he subjectively imagined to be the
case comes into the picture only when the presence of culpability has to be determined.
310
We will now proceed to a discussion of the different grounds of justification. The rest of this
study unit is devoted to a discussion of the first ground of justification, namely private defence.
In the next study unit, we will deal with the remaining grounds of justification.
311
5.3
PRIVATE DEFENCE
(Criminal Law 85-95; Reader 56-66)
312
5.3.1
Definition of private defence
A person acts in private defence – and his conduct is therefore lawful – if he uses force to
repel an unlawful attack that has already commenced, or that immediately threatens
his or somebody else's life, bodily integrity, property or other interest that ought
to be protected by the law, provided the defensive action is necessary to protect the
threatened interest, is directed against the attacker, and is no more harmful than is
necessary to ward off the attack.
Do not feel discouraged if, when reading it for the first time, this definition seems to be
complicated, or if you do not immediately understand all the details it contains. We will
65
CRW2601/1
explain the details of this ground of justification below. By the time you come to the end of
the discussion of this ground of justification, you ought to understand all the elements of
this definition. Colloquially, this ground of justification is often referred to as "self-defence",
but this description is too narrow, since not only persons who defend themselves, but also
those who defend others, can rely upon this ground of justification. A person acting in
private defence acts lawfully, provided his conduct complies with the requirements of private
defence and he does not exceed its limits.
For purposes of classification, it is convenient to divide the requirements and the most important characteristics of private defence into two groups. The first group comprises those
requirements or characteristics with which the attack against which a person acts in private
defence must comply; the second comprises the requirements with which the defence
must comply. In order to assist you in your study, we first summarise the requirements in the
following diagram. This is the framework of the knowledge you should have.
313
Private defence requirements
1. Requirements of attack
The attack
must be unlawful
must be against interests that ought to be protected
must be threatening but not yet completed
2. Requirements of defence
The defensive action
must be directed against the attacker
must be necessary
must stand in a reasonable relationship to the attack
must be taken while the defender is aware that he is acting in private defence
5.3.2
Requirements of the attack
1. The attack must be unlawful
Private defence against lawful conduct is not possible. For this reason, a person acts unlawfully if he attacks a policeman who is authorised by law to arrest somebody. However, if the
policeman is not authorised by law to perform a particular act, or if he exceeds the limits of
his authority, he may lawfully be resisted.
314
Can X rely on private defence if he kills Y in the course of a prearranged duel? In Jansen 1983
(3) SA 534 (NC), X and Y decided to "settle their differences" in a knife duel. During the fight, Y
first stabbed at X, and then X stabbed Y in the heart, killing him. The court held, quite justifiably,
that X could not rely on private defence, and convicted him of murder. X's averting the blow
was merely part of the execution of an unlawful attack, which he had planned beforehand.
315
In deciding whether the attack of Y (the aggressor) on X is unlawful, there are three considerations, marked (a) to (c) below:
316
a.
The attack need not be accompanied by culpability. X can therefore act in
private defence even if his act is directed against a non-culpable act by Y. What
does this mean?
66
(i)
i
As will be explained in the exposition of the culpability requirement below,
culpability implies, inter alia, that a person must be endowed with certain
minimum mental abilities. If he has these mental abilities, he is said to have
criminal capacity. Examples of people who lack these mental abilities and
who, therefore, lack criminal capacity are people who are mentally ill ("insane")
and young children.
The requirement for private defence currently under discussion is merely that
Y's attack must be unlawful. Since even people who lack criminal capacity
can act unlawfully, X can successfully rely on private defence, even if
his defensive act is directed at the conduct of a mentally ill person or a
young child (K 1956 (3) SA 353 (A)). Thus, if X is attacked by Y, he may defend
himself against Y in private defence, even if the evidence brings to light that
Y is mentally ill.
ii
(ii)
ii
Another example of a situation in which a person acts unlawfully but without
culpability is where a person who does have criminal capacity acts without
intention because of a mistake on his part. (Again, the exclusion of intention
because of a mistake will be explained later in the discussion of intention.)
The following is an example of such a situation: Y thinks that he is entitled
to arrest X. However, he is, in fact, not entitled by law to do this. If Y tries to
arrest X, Y is acting unlawfully and X is entitled to defend himself in private
defence against Y. Y's lack of culpability does not debar X from relying on
private defence.
(iii) Since the law does not address itself to animals, animals are not subject to
the law and can, therefore, not act unlawfully. For this reason, X does not
act in private defence if he defends himself or another person against an
attack by an animal. In such a situation, X may, however, rely on the ground
of justification known as necessity (which will be discussed below).
iii
b.
The attack need not be directed at the defender. X may also act in private defence
to protect a third person (Z), even if there is no family or protective relationship
between X and Z (Patel 1959 (3) SA 121 (A)).
Read
Read the aforementioned decision in the Reader: Patel 1959 (3) SA 121 (A).
67
CRW2601/1
2. The attack must be directed against interests that, in the eyes of the law, ought to
be protected
Private defence is usually invoked in protection of the attacked party's life or physical integrity, but, in principle, there is no reason why it should be limited to the protection of these
interests. Thus the law has recognised that a person can also act in private defence:
317
y in protecting property (Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA
488 (A))
y in protecting dignity (Van Vuuren 1961 (3) SA 305 (EC))
y in preventing unlawful arrest (Mfuseni 1923 NPD 68)
y in preventing attempted rape (Mokoena 1976 (4) SA 162 (0))
Read
Read the following decision in the Reader: Ex parte die Minister van
Justisie: in re S v Van Wyk 1967 (1) SA 488 (A).
As far as protection of property is concerned, the most important decision in our case law
regarding private defence is Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA
488 (A). The Appeal Court not only held that, in extreme circumstances, a person is entitled
to kill another person in defence of property, but also had to apply most of the requirements
of private defence referred to above.
318
We will not discuss this case in detail, as we expect you to read the judgment in this case
yourself. You must know the interesting facts of this case, the answers the court gave to the
legal questions posed, and the reasons for these answers. However, we would like to point
out that the common-law rule in Van Wyk (i.e. that a person may kill in defence of property)
319
68
may possibly be challenged on the grounds that it amounts to an infringement of the constitutional rights of a person to life (s 11 of the Constitution), and to freedom and security
(s 12). An enquiry as to the constitutionality of this rule will involve a balancing of the rights
of the aggressor to his life against the rights of the defender to his property. Legal authors
have different points of view on the question of which right (that of the aggressor to his life
or that of the defender to his property) should prevail. We submit that killing in defence
of property would at least be justifiable if the defender, at the same time as defending his
property, also protected his life or bodily integrity. (See the facts of Mogohlwane 1982 (2) SA
587 (T), discussed in (3) hereunder.)
As far as protection of dignity is concerned, it was held in Van Vuuren supra that a person may
rely on private defence in order to defend someone's dignity. In this case, Y insulted X's wife in
public, which caused X to assault Y. The court held that X was not guilty of assault. There was a
distinct possibility that Y would have continued to insult X's wife, and X acted to prevent this.
320
3. The attack must be threatening but not yet completed
X cannot attack Y merely because he expects Y to attack him at some time in the future. He
can attack Y only if there is an attack or immediate threat of attack by Y against him; in this
case, it is, of course, unnecessary that he wait for Y's first blow – he may defend himself by first
attacking Y, with the precise object of averting Y's first blow (Patel 1959 (3) SA 121 (A)). Private
defence is not a means of exercising vengeance, neither is it a form of punishment. For this reason, X acts unlawfully if he attacks Y when Y's attack upon him is already something of the past.
321
When automatic defence mechanisms are set up (such as a shotgun that will go off during
the night if the shop is entered by a thief), there is, at the time when the device is set up, no
immediate threat of attack, but the law recognises that to set up such mechanisms, which
will be triggered the moment the threatened "attack" materialises, may constitute valid
private defence in certain narrowly defined circumstances. Such a case was Van Wyk supra,
in which X, a shopkeeper whose shop was burgled repeatedly, set a shotgun to go off and
injure prospective burglars in the lower part of the body. One-night, Y broke into the shop,
and was fatally wounded. The Appeal Court held that X could rely on private defence.
322
In Mogohlwane 1982 (2) SA 587 (T), Y tried to take a paper bag containing clothes, a pair of
shoes and some food from X. X resisted, but Y threatened X with an axe and gained possession of the bag. X immediately ran to his house, some 350 metres away, fetched a table
knife, returned to Y, and tried to regain his property. When Y again threatened X with the
axe, X fatally stabbed Y with his knife in order to prevent him (Y) from fleeing with his (X's)
bag of possessions. The court decided that X acted in private defence: the attack on X was
not completed, because when X ran home and fetched the knife, it was part of one and the
same immediate and continued act of resistance. X was a poor man, and the contents of the
bag were of value to him. If Y had run off with the bag, X would never have seen it again.
323
5.3.3
Requirements of the act of defence
1. It must be directed against the attacker
If Y attacks X, X cannot direct his act in private defence against Z.
324
2. The defensive act must be necessary
The defensive act must be necessary in order to protect the interest threatened, in the sense
that it must not be possible for the person threatened to ward off the attack in another, less
harmful way (Attwood 1946 AD 331 340).
325
69
CRW2601/1
EXAMPLE
If, on the termination of the lease, the obstinate lessee refuses to leave the house, the lessor is
not entitled to seize him by the collar and forcibly remove him from the premises. The lessor
can protect his right and interests by availing himself of the ordinary legal remedies, which
involve obtaining an ejectment order from a court and, possibly, also claiming damages. The
basic concept underlying private defence is that a person is allowed to "take the law into his
own hands", as it were, only if the ordinary legal remedies do not afford him effective
protection. He is not allowed to arrogate to himself the functions of a judge and a sheriff.
326
327
On the other hand, a threatened person need not acquiesce in an attack upon his person or
rights merely because he will be able to claim damages afterwards. The present rule merely
means that the threatened person may not take the law into his own hands summarily if the
usual legal remedies afford him adequate protection. It would seem that our courts require
an assaulted person to flee, if possible, rather than kill his assailant, unless such an escape would be dangerous. For criticism of this perspective, read the discussion in Criminal
Law 88-90.
328
3. There must be a reasonable relationship between the attack and the defensive act
Another way of expressing this requirement is by saying that the act of defence may not be
more harmful than necessary to ward off the attack (Trainor 2003 (1) SACR 35 (SCA)).
329
It stands to reason that there ought to be a certain balance between the attack and the
defence. After all, a person is not entitled to shoot and kill someone who is about to steal his
pencil. There should be a reasonable relationship between the attack and the defensive act,
in the light of the particular circumstances in which the events take place. If, for example, the
attacked party could have overcome the threat by using his fists or by kicking the assailant,
he may not use a knife, let alone a firearm.
330
In order to decide whether there was a reasonable relationship between attack and defence,
the Supreme Court of Appeal in Steyn 2010 1 SACR 411 (SCA) 417 identified the following
factors as relevant, but also stated that the list is not exhaustive, and that each case should
be determined in the light of its own circumstances:
331
y
y
y
y
y
y
y
y
y
the relationship between the parties
the gender of the parties, their respective ages and physical strengths
the location of the incident
the nature of the weapon used in the attack
the nature, severity and persistence of the attack
the nature and severity of any injury likely to be sustained in the attack
the means available to avert the attack
the nature of the means used to offer the defence
the nature and extent of the harm likely to be caused by the defence
In practice, whether this requirement for private defence has been complied with is more a
question of fact than of law. A clearer picture of this requirement emerges if we consider the
elements between which there need not be a proportional relationship:
332
a.
There need not be a proportional relationship between the nature of the interest
threatened and the nature of the interest impaired. The attacked party may impair
an interest of the assailant that differs in nature from the interest that he is defending.
The following EXAMPLES illustrate this point:
70
• If Y threatens to deprive X of a possession belonging to X, X is entitled to assault Y in
private defence in order to protect his possession. This means that X may, in order to
protect his own property, impair an interest of Y that is not of a proprietary nature,
namely Y's physical integrity. In Ex parte die Minister van Justisie: in re S van Wyk
supra, the Appeal Court held that X may, in extreme circumstances, even kill Y in
order to protect his property. However, see the comment on the constitutionality
of this rule under 5.3.2 (2) above.
• If Y threatens to rape X, X may defend her chastity even by killing Y (Van Wyk
supra 497A-B).
The nature of the interest protected and the interest impaired may therefore be dissimilar.
However, this rule must be tempered by the qualification that in cases of extreme disproportion between interests, reliance on private defence may be unsuccessful (Van Wyk supra 498).
333
b.
There need not be a proportional relationship between the weapons or means
used by the attacker and the weapons or means used by the attacked party. If the
person attacked may not defend himself with a different type of weapon from the one
used by the attacker, it follows that the attacker has the choice of weapon, and such a
rule would obviously be unacceptable.
c.
There need not be a precise proportional relationship between the value or extent
of the injury inflicted by the attacker and the value or extent of the injury inflicted
by the defending party. Unlike a referee in a boxing contest, we don't count the exact
number of blows struck by the attacked party, and then compare that with the number
of blows struck by the assailant. Nevertheless, although there need not be a precise
relationship, there must be an approximate relationship, which will be determined by
the facts of each case.
This requirement for private defence does not mean that the law, by requiring the attacked
party to avail himself of the least harmful means, requires the attacked party to gamble with
his life or otherwise expose himself to risks.
334
Read
Read the following case in the Reader: Steyn 2010 (1) SACR 411 (SCA)
The case of Steyn (supra) serves as a good example in this regard. X shot and killed her former
husband (Y) in the following circumstances: Y drank heavily and continuously abused X, both
mentally and physically over a long period of time. He often told her that he would slit her
throat, and regularly locked her in her bedroom. X eventually divorced her husband (Y). X
got her own flat, but because of financial difficulties, she returned to the matrimonial home,
although she no longer shared a bedroom with Y. Y continued to abuse her, and, at times,
she locked herself in her bedroom to prevent Y from assaulting her. One evening, X, who was
suffering from depression and anxiety, told Y that she had contacted the medical aid to find
out whether it would pay for treatment for her anxiety at a nearby clinic. Y, who had been
drinking, lost his temper, verbally abused X, claiming she was mad, and then grabbed her
by the throat, and began to hit her. She managed to escape and ran to her bedroom, where
she locked herself in. Later that evening she went to the kitchen to find something to eat
before taking some prescribed medicine for an ulcer. Because she was overcome with fear,
she armed herself with her .38 revolver, which she hoped would dissuade Y from attacking
335
71
CRW2601/1
her again. On seeing her, Y shouted that he had told her to stay in her room, and that she
was not to get anything to eat. Holding a steak knife, he jumped to his feet and rushed at
her, shouting that he was going to kill her. X then fired a shot at Y, and immediately returned
to her room, where she phoned a friend. She was charged with culpable homicide, and her
plea that she had acted in self-defence was rejected. The trial court held that a reasonable
person in X's position would have foreseen the possibility that Y might attack her and would
not have left the room. It concluded that she (X) had acted unreasonably, and that the fatal
incident could have been avoided if she had telephoned for help.
The Supreme Court of Appeal rejected this reasoning of the trial court. The court recognised
that there must be a reasonable balance between the attack and the defensive act. However,
strict proportionality is not required, the proper consideration being whether, in the light of
all the circumstances, the defender acted reasonably (at paras 417e-f). The court was of the
view that it could not have been expected of X to gamble with her life by turning her back
on the deceased who was very close to her and about to attack her with a knife, in the hope
that he would not stab her in the back. Leach AJA commented that "she would have had to
turn around in order to get back to her room, by which time the deceased would have been
upon her and flight would have been futile" (para 418c). Her assumption that Y would catch
her was a reasonable one, and, therefore, "she could not be faulted for offering resistance to
the deceased rather than attempting to flee from him" (para 418d). The court added that X
was entitled to leave her bedroom, in her own home, and go to the kitchen to find something
to eat. Her life was under threat and she was entitled to use deadly force to defend herself.
Her plea of self-defence was accordingly upheld.
336
Activity 4.2
Assume that X, who is sleeping in his home, is woken up in the middle of the night by Y,
an armed burglar, who approaches his room or that of a family member. X shoots at Y in
order to protect his family. Y dies as a result of the shot. Can X's conduct be justified on
the grounds of private defence?
Feedback
7
It would be unfair to expect X first to ask Y to identify himself and state the purpose of his
visit in order to decide what, objectively, the appropriate defensive measures would be in
the circumstances. It would also be unfair to expect X first to try to arrest Y and then call the
police. Experience tells us that even a moment's hesitation by X in such circumstances might
be fatal to X. To deny X the right to shoot in such circumstances is to require him to gamble
with his life or with that of the other people in the house.
Even if a court holds that X cannot rely on private defence because, objectively, there was
a less harmful way in which he could have overcome the danger, the court would, in most
cases, refuse to convict X of murder if he shot and killed Y, on the following ground: although
X acted unlawfully, he lacked intention because he honestly believed that his life or the lives of
his family members were in danger. This means that there was no awareness of unlawfulness
on his part, and, therefore, no intention. He was mistaken about the unlawfulness of his
action, and, therefore, lacked intention. This will become clearer later in the guide where, as
part of the discussion of intention, we discuss the effect of mistake relating to unlawfulness.
However, X may still be found guilty of culpable homicide if the reasonable person would
have acted differently in the circumstances. See the discussion in 11.7.3 hereunder.
72
4. The attacked person must be aware of the fact that he is acting in private defence
There is no such thing as inadvertent or accidental private defence. Private defence cannot
succeed as a defence in cases where it is pure coincidence that the act of defence was, in
fact, directed at an unlawful attack.
337
EXAMPLE
X decides to kill Y, whom he dislikes, and shoots and kills him while he is sitting in a bus
together with other passengers. Only afterwards is it discovered that Y was an urban terrorist, who was on the point of blowing up the bus and all its passengers by means of a hand
grenade. If X had not killed Y in time, he (X) himself would have been killed in the explosion.
X would, however, not be allowed to rely on private defence in such circumstances. (There is,
thus far, no direct authority in our case law dealing with this requirement for private defence.)
338
339
5.3.4
The test for private defence
The question whether X's acts fell within the limits of private defence must be considered
objectively, that is, in the light of the actual facts, and not according to what X (at the time)
took the facts to be. A person cannot rely on private defence if it appears that he was not,
in fact, exposed to any danger, but merely thought that he was.
340
EXAMPLE
Y goes out one evening to play cards with his friends. On his way home, he loses his keys,
perhaps because he has had one or two drinks too many. Arriving at his home, he decides
not to wake his wife, X, by knocking on the door, but rather to climb through an open window. His wife wakes up and, in the dark, sees a figure climbing through the window. She
does not expect it to be her husband and assumes it is a burglar. She seizes a pistol and fires
at the "burglar" – her husband – killing him. X cannot rely on private defence because, from
an objective point of view, she did not find herself in any danger. She merely thought she
was in danger. We may refer to this type of situation as putative private defence. (The word
"putative" is derived from the Latin word putare, which means "to think". Thus "putative
private defence" means private defence that existed only in X's thoughts.) It is not actually
private defence. However, the fact that X cannot rely on private defence does not mean that
she is guilty of murder. She may, as a defence, rely on absence of culpability because she
was mistaken and her mistake excluded the intention to murder her husband. We will
return to this point later.
341
342
Whether there actually was danger or an attack warranting the exercise of private defence
must be determined objectively ex post facto (after the event). Here the rule is that the court
should not act as an armchair critic, but should try to visualise itself in the position of the
attacked person at the critical moment, when they possibly had only a few seconds to make
a decision that was of vital importance to them.
343
5.3.5
Exceeding the limits of private defence
If X is attacked by Y, but in retaliating, exceeds the limits of private defence (e.g. because he
causes the attacker more harm or injury than is justified by the attack), he himself becomes an
attacker and acts unlawfully. Whether he is then guilty of a crime such as murder, assault or
culpable homicide will depend on his culpability – in other words, his possible intention or
negligence. For this reason, the whole question relating to the effect of exceeding the limits
of private defence will be discussed later, after the discussion of culpability (see study unit 11).
344
73
CRW2601/1
GLOSSARY
345
boni mores
the good morals of society
346
SUMMARY
348
1. Once it is clear that X has committed an act that complies with the definitional elements,
the next step in enquiring into the question of criminal liability is whether X's act was
also unlawful.
2. Conduct is unlawful if it is in conflict with the good morals (boni mores) or legal convictions
of society.
3. The grounds of justification are practical aids for determining unlawfulness. They represent
situations often encountered in practice that have come to be known as easily recognisable
grounds for the exclusion of unlawfulness.
4. See the definition of private defence above.
5. See the summary in 5.3.1 above for the requirements with which the attack and the act
of defence must comply in order to succeed with a plea of private defence.
6. In Ex parte die Minister van Justisie: in re S v Van Wyk, the Appeal Court held that X
may, in extreme circumstances, even kill another in private defence to protect his (X's)
property. The constitutionality of this rule is questioned by legal writers.
7. Putative private defence occurs when X thinks that he is in danger, but, in fact, is not. This
is not actual private defence, but it may exclude X's culpability
Further reading
For more information on private defence, read:
• Burchell Principles of Criminal Law (2016) 121–142.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 93–102.
Self-assessment
5
(1) When will conduct be regarded as unlawful?
(2) Are there a limited number of grounds of justification? Discuss in view of the decision
in Fourie.
(3) Is the following statement true or false: "Conduct is unlawful if it accords with the definitional elements."
(4) Define private defence.
(5) State the requirements with which the attack, as well as the act of defence, must comply
in order to form the basis of a successful plea of private defence.
(6) Distinguish putative private defence from actual private defence.
(7) Discuss the question of whether, or in what circumstances, X may act in private defence
(a) against a young child
(b) against a policeman
(c) against an animal
(d) in defence of another person
74
(e)
(f)
(g
(h)
(i)
(j)
in protection of property
as punishment for an attack that is already over
against another person, who is not the attacker
in a situation where it is possible for him (X) to escape
in a manner that is more harmful than is necessary to ward off the attack
in a situation where he (X) is unaware that his act of defence is directed against
an unlawful attack
(8) Discuss the decision of the Supreme Court of Appeal in the case of Steyn.
75
CRW2601/1
LEARNING UNIT 6
Unlawfulness II
Contents
Learning outcomes
6.1 Background
6.2 Necessity
6.2.1 Definition of necessity
6.2.2 Differences between private defence and necessity
6.2.3 Restricted field of application
6.2.4 Requirements for the plea of necessity
6.2.5 Killing another person out of necessity
6.2.6 The test to determine necessity is objective
6.3 Consent
6.3.1 Introduction
6.3.2 The different possible effects of consent
6.3.3 When consent can operate as ground of justification in assault
6.3.4 Requirements for a valid plea of consent
6.4 Presumed consent
6.5 The right of chastisement
6.5.1 Background
6.5.2 Teachers no longer have right to impose corporal punishment
6.5.3 Parents' right to impose corporal punishment unconstitutional
6.6 Obedience to orders
6.7 Official capacity
6.7.1 The general rule
6.7.2 Examples of the application of official capacity as ground of justification
6.8 Triviality
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• further demonstrate your understanding of unlawfulness by evaluating an accused's
conduct so as to decide whether it complies with the requirements of the grounds of
justification known as necessity, consent, presumed consent, the right of chastisement,
obedience to orders, official capacity or triviality
76
6.1
BACKGROUND
As pointed out in the previous study unit, the discussion of unlawfulness is spread over two
study units. In the previous study unit, we discussed the meaning of the concept of unlawfulness and, thereafter, the first ground of justification, namely private defence.
349
In this study unit, we discuss the remaining grounds of justification, namely necessity, consent,
presumed consent, the right of chastisement, obedience to orders, official capacity and triviality.
350
6.2
NECESSITY
351
6.2.1
(Criminal Law 95-102; Reader 67-70)
Definition of necessity
A person acts out of necessity – and her conduct is therefore lawful – if she acts in the
protection of her own or somebody else's life, physical integrity, property or other
legally recognised interest that is endangered by a threat of harm that has already
begun or is immediately threatening and that cannot be averted in any other way;
provided that the person who relies on the necessity is not legally compelled to endure
the danger, and the interest protected by the act of defence is not out of proportion
to the interest threatened by such an act. Although this definition does not cover every
aspect of this ground of justification, it does contain the most important elements.
6.2.2
Differences between private defence and necessity
The two grounds of justification known as necessity and private defence are closely related.
In both cases, the perpetrator (X, in the examples that follow) protects interests that are of
value to her, such as life, physical integrity and property, against threatening danger. The
differences between these two grounds of justification are the following:
352
1. The origin of the situation of emergency: Private defence always stems from an unlawful
(and, therefore, human) attack; necessity, on the other hand, may stem either from an
unlawful human act or from chance circumstances, such as natural occurrences.
2. The object at which the act of defence is directed: Private defence is always directed at
an unlawful human attack; necessity is either directed at the interests of another innocent
third party or merely amounts to a violation of a legal provision.
The following are EXAMPLES of situations in which X's conduct is justified because she is
acting in a situation of necessity:
353
y While X is in Y's back yard, Z attacks her (X) with a knife. X finds herself unable to ward off the
attack because she (X) is slightly built and unarmed, whereas Z is strong and armed with a
knife. There is one possible way for X to escape, and that is to kick a part of the fence (which
belongs to Y) to pieces, and then run away through the broken fence. This is exactly what
X does. If X is subsequently charged with malicious injury to property in that she broke a
fence belonging to Y, she can successfully rely on the defence of necessity. In this example,
the emergency situation arose from an unlawful act, but the act of defence is directed not
against the attacker, but against the interests of an innocent third party, namely Y.
77
CRW2601/1
y The facts of Goliath 1972 (3) SA 1 (A) are as follows: Z ordered X to kill Y, and threatened to
kill X if she did not carry out the order. There were no means of escape for X, so she killed
Y. X was found not guilty. This type of situation is known as "compulsion" or "coercion".
y The ship on which X is a passenger sinks during a storm gale. X ends up in the ocean,
clinging to a piece of driftwood. Another former passenger, Y, clings to the same piece of
wood. However, the two of them are too heavy to be kept afloat by the wood. X pushes
Y into the ocean in order to save her own life. Here the reason for the emergency was an
act of nature and the act of defence was directed against an innocent person.
y The facts in Pretorius 1975 (2) SA 85 (SWA) are as follows: X's baby swallowed an overdose
of Disprin tablets. X rushed the child to the hospital by car for emergency treatment. While
driving to the hospital, he exceeded the speed limit. On a charge of exceeding the speed
limit, he relied successfully on the defence of necessity. Here, strictly speaking, the reason
for the situation of emergency was a series of chance circumstances; the act committed
out of necessity was not directed against some person's interests, but amounted merely
to a violation of a legal provision, namely the prohibition on speeding.
If X acts in a situation of necessity, she acts lawfully. For a plea of necessity to succeed, it is
immaterial whether the situation of emergency is the result of human action (e.g. coercion)
or chance circumstances (the so-called inevitable evil, such as famine, a flash of lightning
or a flood). Neither does it matter whether X's act by which she endeavours to escape the
emergency is directed against the interests of another human being or amounts merely to
a violation of a legal provision. All that matters is whether X found herself in a situation of
emergency when she acted.
354
78
355
Example of necessity. While X finds herself on the third storey of a building, a fire breaks out in the building.
In order to save her life, she jumps out of the window, landing on the roof of an expensive German luxury
sedan. The roof of the car is severely damaged. X is charged with malicious injury to property in respect of
the car. She cannot be convicted, because she can successfully rely on the defence (ground of justification)
of necessity. The damage was caused in the course of committing an act to save her life; the fire which led
to her jumping out of the building constituted an immediate threat to her life; there was for her no other
way of escape out of the building; and the interest which she infringed (namely the car owner's interest not
to have his car's roof damaged) was not of more importance than the interest which she sought to protect
(namely her own life).
356
6.2.3
Restricted field of application
Private defence can readily be justified on ethical grounds, since there is always an unlawful
attack and the attacker simply gets what she deserves. On the other hand, justifying necessity
is more difficult. Here X finds herself in a situation where she must choose between two
evils: she must either suffer personal harm or break the law, and the choice she must make
is often a debatable point. It is precisely for this reason that there must be strict compliance
with the requirements for necessity before the defence can be successful. The attitude of
our courts to the plea of necessity is often one of scepticism, and they also seek to restrict
its sphere of application as far as possible (Damascus 1965 (4) SA 598 (R) 602).
357
6.2.4
Requirements for the plea of necessity
Although the requirements for a successful plea of necessity resemble, to some extent, the
requirements for a successful plea of private defence, they are not the same in all respects.
358
79
CRW2601/1
In order to assist you in your studies, we will begin by summarising the requirements in the
following diagram:
Requirements for a plea of necessity
1. legal interest threatened
2. may also protect another
3. emergency already begun but not yet terminated
4. may rely on necessity even if personally responsible for emergency
5. not legally compelled to endure danger
6. only way to avert danger
7. conscious of fact that emergency exists
8. not more harm caused than necessary
The requirements are the following:
360
1. Some legal interest of X, such as her life, physical integrity or property, must be threatened.
In principle, a person should also be able to protect other interests, such as dignity,
freedom and chastity, in a situation of necessity.
2. A person can also act in a situation of necessity to protect another's interest, for example,
where X protects Z from being attacked by an animal.
3. The emergency must already have begun or be imminent, but must not have
terminated, nor only be expected in the future.
4. Whether a person can rely on the defence of necessity if she herself is responsible for
the emergency is a debatable question. In our opinion, X should not be precluded from
successfully raising this defence merely because she caused the emergency herself. If she
were precluded, this would mean that, if, because of X's carelessness, her baby swallowed
an overdose of pills, X would not be allowed to exceed the speed limit while rushing the
baby to hospital, but would have to resign herself to the child's dying (compare the facts
in Pretorius supra). The two acts, namely the creation of danger and rescue from it, should
be separated. If the first act amounts to a crime, X can be punished for it, for example,
where she sets fire to a house, and then has to break out of the house to save her own life.
5. If somebody is legally compelled to endure the danger, she cannot rely on necessity.
Persons such as police officials, soldiers and firefighters cannot avert the dangers inherent
in the exercise of their profession by infringing the rights of innocent parties. Another
aspect of this rule is that a person cannot rely on necessity as a defence if what appears
to her to be a threat is, in fact, lawful (human) conduct. Thus, it was held in Kibi 1978
(4) SA 173 (EC) that if X is arrested lawfully, he may not damage the police van in which
he has been locked up in order to escape from it.
6. The act committed in necessity is lawful only if it is the only way in which X can avert
the threat or danger. Where, for example, Z orders X to kill Y, and threatens to kill X if she
does not obey, and it appears that X can overcome her dilemma by fleeing, she must flee
and, if possible, seek police protection (Bradbury 1967 (1) SA 387 (A) 390).
7. X must be conscious of the fact that an emergency exists and that she is therefore
acting out of necessity. There is no such thing as a chance or accidental act of necessity. If
X throws a brick through the window of Y's house in order to break in, and it later appears
that by so doing she has saved Z – who was sleeping in a room filled with poisonous
gas – from certain death, X cannot rely on necessity as a defence.
80
8. The harm occasioned by the defensive act must not be out of proportion to the interest
threatened. Therefore, X must not cause more harm than is necessary to escape the
danger. It is this requirement that is the most important one in practice, and it can also
be the most difficult to apply. The protected and the impaired interests are often of a
different nature, for example, where somebody damages another's property in protecting
her own physical integrity. One of the most important – and also the most problematic
– questions arising in respect of the requirement under discussion is whether a person is
entitled to kill someone in a situation of necessity. Because of its complexity, this question
will be discussed separately below.
Activity 6.1
While walking in the street, X sees a dog attacking Y, an old person. X and Y do not know
each other. In order to protect Y, who cannot defend herself, X hits the dog with her walking stick. The dog dies as a result of a head wound caused by the injuries inflicted by X. X
is charged with malicious injury to property in respect of the dog. What is the appropriate
defence in these circumstances – private defence or necessity?
Feedback
8
X can rely on the defence of necessity. In a situation of necessity, a person may also protect
the interests of somebody else, even though there is no particular relationship between that
person and the party who is being protected. If you protect yourself or another person against
an animal's attack, you act in a situation of necessity, and not in private defence. Private
defence is possible only against an unlawful attack. Only a human being can act unlawfully.
6.2.5
Killing another person out of necessity
Possibly the most perplexing question relating to necessity as a ground of justification is
whether a threatened person may kill another in order to escape from the situation of emergency. Naturally, this question arises only if the threatened person finds herself in mortal
danger. This mortal danger may stem from compulsion, for example, where Y threatens to kill
X if X does not kill Z, or from an event not occasioned by human intervention, for example,
where two shipwrecked persons vie for control of a wooden beam that can keep only one
of them afloat, and one of them eventually pushes the other away in an attempt to survive.
Until 1972, our courts usually held that the killing of a person could not be justified by necessity (Bradbury 1967 (1) SA 387 (A) 399).
361
Read
Read the following decision in the Reader: Goliath 1972 (3) SA 1 (A).
However, in Goliath 1972 (3) SA 1 (A), the Appeal Court conclusively decided that necessity
can be raised as a defence against a charge of murdering an innocent person in a case of
extreme compulsion. In this case, X was ordered by Z to hold on to Y, so that Z might stab
and kill Y. X was unwilling throughout, but Z threatened to kill him if he refused to help him.
The court inferred, from the circumstances of the case, that it had been impossible for X to
362
81
CRW2601/1
run away from Z – Z would then have stabbed and killed him. The only way in which X could
have saved his own life was by yielding to Z's threat, and assisting him in the murder. In the
trial court, X was acquitted on the ground of compulsion, and on appeal by the state on a
question of law, the Appeal Court held that compulsion could, depending upon the circumstances of a case, constitute a complete defence to a charge of murder.
The Appeal Court added that a court should not lightly arrive at such a conclusion, and
that the facts would have to be closely scrutinised and judged with the greatest caution.
One of the decisive considerations in the court's main judgment, delivered by Rumpff JA,
was that we should never demand of an accused more than is reasonable; that, considering
everyone's inclination to self-preservation, an ordinary person regards his life as being more
important than that of another; that only somebody "who is endowed with a quality of heroism" would purposely sacrifice his life for another, and that to demand of X that he sacrifice
himself therefore amounts to demanding more of him than is demanded of the average
person. The court in Goliath did not regard it as necessary to state whether the defence of
necessity in the given circumstances is based on justification or absence of culpability.
363
However, in Maimela v Makhado Municipality and Another 2011 (2) SACR 339 (SCA), the court
regarded necessity as a ground of justification in the following circumstances: X, the second
respondent and an employee of the first respondent (the municipality), discharged his pistol
into a crowd of striking workers in circumstances of necessity. More than 300 strikers armed
with knobkerries had surrounded X while he was lying on the ground and hit him. Fearing
for his life, he fired the shots randomly into the crowd "to scare them away" (at para 7). One
person was killed, and the other shot in the face. A delictual claim was instituted against X and
his employer by the person injured and the wife of the person killed. There was no evidence
before the court that the persons injured and killed were actively participating in the attack
upon X. The High Court dismissed the delictual claim on the ground that X had acted in a
situation of necessity. The Supreme Court of Appeal also upheld the defence of necessity.
The Court pointed out that necessity, unlike private defence, does not require that the act
be an act of defence against an unlawful attack (para 16). The main issue was whether
the act of the person who relies on necessity was reasonable. According to the Court, X's
life was in danger, and there can be no greater harm than a threat to a person's life. Had X
not fired the shots, he would in all probability have been killed. In the circumstances, X had
acted reasonably. The court ruled that while due regard must be had to the victim's right
to life, denying a person the right to act in circumstances of necessity by killing to protect
his life would be to deny that person his or her right to life (paras 18 and 20).
364
If you are interested in the controversial academic question whether the killing of another
person in a situation of necessity amounts to a ground of justification or, rather, a ground
excluding culpability, you can read Criminal Law 100-102. However, you are not expected to
know the various arguments advanced by legal scholars for examination purposes.
365
6.2.6
The test to determine necessity is objective
The question whether X's acts fell within the limits of the defence of necessity must be considered objectively, that is, in the light of the actual facts, and not according to what X (at
the time) took the facts to be. If she is not actually (that is, objectively) in such a situation,
but merely thinks that she is, she cannot rely on necessity as a justification. If she merely
thinks that she is acting out of necessity, and, while thus mistaken, directs her action against
another person's interests, her action remains unlawful, but she may escape liability because
she lacks culpability. This will become clear in the course of the discussion of culpability
366
82
further on, more particularly in the discussion of the effect of mistake and of awareness of
unlawfulness. Such a situation may be described as putative necessity.
Killing one or a few to save the many?
Imagine the following scenario: An aeroplane is hijacked, and head towards a highly
populated city. The hijacker intends to crash the plane in the city. Will it be justified to
shoot the plane down because of necessity to save the lives of those living in the city?
It may be argued that the people on the plane are due to die anyway, whether the
plane is shot down or not. Shooting down the plane will only be a minor infringement
of their right to life. In the same line of argument, what if a very contagious and deadly
virus was threatening the lives of millions of people, but one person appeared to have
developed an antibody to the disease. However, only by killing this person could scientists develop a medication that could save millions of lives. In the examples provided
above, do you think that the plane should be shot down, and the person killed? What
would the arguments be against taking the lives of these innocent people?
6.3
CONSENT
367
6.3.1
(Criminal Law 102-106)
Introduction
Consent by the person who would otherwise be regarded as the victim of X's conduct may,
in certain cases, render X's otherwise unlawful conduct lawful. To generalise about consent
as a ground of justification in criminal law is possible only to a limited degree, since consent
can operate as a ground of justification only in respect of certain crimes, and then only under
certain circumstances.
368
83
CRW2601/1
The idea that consent may render a seemingly unlawful act lawful is sometimes expressed in
the Latin maxim volenti non fit iniuria. Freely translated, these words mean "no wrongdoing
is committed in respect of somebody who has consented (to the act concerned)".
369
6.3.2
The different possible effects of consent
In order to understand the possible effect of consent on criminal liability properly, it is feasible
to differentiate between the following four groups of crimes:
370
1. There are crimes in respect of which consent does operate as a defence, but where
such consent does not operate as a ground of justification. It forms part of the
definitional elements of the crime instead. The reason absence of consent forms part
of the definitional elements is that absence of consent by a certain party plays such a
crucial role in the construction of the crime that this requirement is incorporated into
the definitional elements of the crime. The best-known example in this respect is rape.
Rape is possible only if the sexual penetration takes place without the person's consent.
Absence of consent must, of necessity, form part of the definitional elements of the crime
because it forms part of the minimum requirements necessary for the existence of a
meaningful criminal prohibition.
2. There are crimes in respect of which consent by the injured party is never recognised as
a defence. The best-known example is murder. Mercy killing (euthanasia) at the request
of the suffering party is unlawful (See also Criminal Law 124).
The Supreme Court of Appeal in Minister of Justice and Correctional Services and Others v
Estate Late James Stransham-Ford and Others 2017 (3) SA 152 (SCA) distinguished mercy
killing from physician-assisted euthanasia (PAE). To terminate the life of a terminally-ill
patient out of compassion for their suffering, and not upon the request of the patient,
is mercy killing. Such conduct constitutes the crime of murder, and such a consideration
was not a justification against a charge of murder. (Hartmann 1975 (3) SA 532 (C) and De
Bellocq 1975 (3) SA 538 (T) were cited as examples of mercy killing.) The SCA acknowledged
that as the law currently stood in relation to PAE (or instances where the termination of
life by a medical practitioner followed upon a request made by the patient), consent is
not a defence available to the medical practitioner who brings about the death of
the deceased patient. In order for this legal position to change, it was necessary that
the principle that consent cannot be a defence to a charge of murder be appropriately
challenged to allow for justification of the conduct of a medical practitioner in instances
of euthanasia (PAE). The SCA overturned the decision of the North Gauteng High Court
(Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50
(GP)), which had developed the common law to allow for PAE, on the basis that the High
Court’s order only related to the claim of the applicant alone. Insufficient consideration
had been given to the appropriate legal principle and the case law that justified it. According to the SCA, “such a profound change to our law of murder” without consideration
of applicable principles had to be set aside.
371
3. There are crimes in respect of which consent does operate as a ground of justification.
Well-known examples of such crimes are theft and malicious injury to property.
4. There is a group of crimes in respect of which consent is sometimes regarded as
a ground of justification and sometimes not. (These crimes fall, as it were, halfway
between categories (2) and (3) mentioned above.) An example of a crime that falls into
this category is assault.
84
6.3.3
When consent can operate as a ground of justification in assault
Unlike the law of delict, which, in principle, protects individual rights or interests, criminal law
protects the public interest too; the state or community has an interest in the prosecution and
punishment of all crimes, even those committed against an individual. The result is that, as far
as criminal law is concerned, the individual is not always free to consent to impairment of her
interests. This is why even physical harm inflicted on somebody at her own request is sometimes regarded by the law as unlawful, and, therefore, as amounting to assault. The criterion
to be applied to determine whether consent excludes unlawfulness is the general criterion of
unlawfulness, namely the boni mores (legal convictions) of society, or public policy.
372
The best-known examples of situations in which consent may indeed justify an otherwise
unlawful act of assault are those where injuries are inflicted on others in the course of sporting
events, and where a person's bodily integrity is impaired in the course of medical treatment,
such as during an operation. Other examples of "impairments of bodily integrity", such as a
kiss, a handshake or even a haircut, occur so often in everyday life that non-liability is taken
for granted. The reason a medical doctor cannot be charged with assaulting a patient upon
whom she performs an operation is the patient's consent to the operation (assuming that it
has been given). If it was impossible for the patient to consent because of unconsciousness
or mental illness, for example, the doctor's conduct may nevertheless be justified by necessity or presumed consent (which will be explained below).
373
Assault may be committed with or without the use of force or the infliction of injuries. If there
was no violence or injuries, consent may justify the act (D 1998 (1) SACR 33 (T) 39). Where injuries have been inflicted, it must be ascertained whether the act was in conflict with the boni
mores (i.e. whether it was contra bonos mores – "against good morals"). If this was indeed the
case, the consent cannot operate as a ground of justification (Matsemela 1988 (2) SA 254 (T)).
374
6.3.4
Requirements for a valid plea of consent
The consent must comply with certain requirements in order to be valid, that is, in order to
afford X a defence. We will now consider these requirements.
375
To assist you in your studies, we first summarise the requirements for this ground of justification in the following framework:
376
The consent must be
1. given voluntarily
2. given by a person who has certain minimum mental abilities
3. based upon knowledge of the true and material facts
4. given either expressly or tacitly
5. given before the commission of the act
6. given by the complainant herself
1. The consent must be given voluntarily, without any coercion. Consent obtained as a
result of violence, fear or intimidation is not voluntary consent. If, for example, X brandishes
a revolver while demanding money from Y and Y hands over the money because she
feels threatened, there is no valid consent to the giving of the money (Ex parte Minister
of Justice: in re R v Gesa; R v De Jongh 1959 (1) SA 234 (A)).
85
CRW2601/1
However, mere submission cannot be equated with voluntary consent (D 1969 (2) SA 591
(RA)). If a woman decides that it is futile to resist the strong, armed attacker who is about to
rape her, and simply acquiesces in what he does to her (in other words, she does not expressly
manifest her objection verbally or by physical acts), her conduct cannot be construed as
consent to intercourse (Volschenk 1968 (2) PH H283 (D)).
377
Note the interesting application of this requirement in McCoy 1953 (2) SA 4 (SR) (as illustrated below).
Consent as a ground of justification: the facts in McCoy's case. In this case Y, a young air hostess, failed
to fasten her safety belt when the plane landed. (This constituted an infringement of certain security
regulations of the company.) X, the general manager of the airways company, reprimanded her for her
failure and threatened to dismiss her from the service of the airways. She did not want to lose her job, and
accordingly gave permission in writing that X could give her a hiding in exchange for an undertaking by
him that he would not dismiss her. X thereupon gave a hiding of six strokes on her buttocks. As a result, X
was charged with having assaulted Y.
The court rejected X's defence that she had consented to the chastisement, on the following two grounds:
First, her consent was not voluntary, since she only "consented" out of fear and in order to avoid being
dismissed. Secondly, even if the consent had been voluntary, the court could not recognise such consent as
valid and as amounting to a ground of justification. (Although the court did not say so expressly, it is submitted that the reason for the latter ruling is that it would be contra bonos mores (contrary to the generally
recognised morals prevailing in society) and contrary to the legal convictions of society to recognise such
consent as valid where it was given by a young female employee to the general manager of the company
for which she was working, and in order to avoid being dismissed.
2. The person giving the consent must be endowed with certain minimum mental
abilities. These abilities are the ability:
• to appreciate the nature of the act to which she consents
and
• to appreciate the consequences of the act
86
For this reason, if a woman is mentally ill, under a certain age, drunk, asleep or unconscious,
she cannot give valid consent to sexual intercourse (C 1952 (4) SA 117 (O) 121; K 1958 (3) SA
420 (A)). In SM 2013 (2) SACR 111 (SCA), a minor adopted child was induced by threats and
rewards over a long period by her adoptive father (a senior pastor of a church) to have sexual
intercourse with him. For instance, he gave her permission to go out with friends, provided
she afforded him certain "privileges" of a sexual nature (para 115b). He also gave her liquor
on numerous occasions in order to break down her resistance. The court explained that "in
the context of sexual relations involving children, any appearance of consent to such conduct is deserving of elevated scrutiny, with particular attention to be paid to the fact that the
person giving the consent is a child. The inequalities in the relationship between the child
victim and the adult perpetrator are of great importance in understanding the construction,
nature and scope of the child's apparent consent to any sexual relations. These inequalities
may most likely influence the child's propensity to consent to sexual relations" (para 120h).
The court found that the accused (the pastor) had manipulated the complainant's vulnerability and his stature in the community to his advantage. Because of the accused's improper
behaviour, the complainant's consent was no real consent and the accused was accordingly
found guilty of rape.
378
3. The consenting person must be aware of the true and material facts regarding the
act to which she consents. A fact is material if it relates to the definitional elements of
the particular crime.
In the case of rape, for example, the person must be aware of the fact that it is sexual penetration to which she is consenting. In an old English decision (bearing a very appropriate name),
Flattery (1877) 2 QBD 410, a woman thought that X, a quack surgeon, was operating on her
to cure her of her fits, whereas he was, in fact, having sexual intercourse with her. In another
decision in England, Williams [1923] 1 KB 340, a woman thought that X, her singing teacher,
had performed a surgical operation on her to improve her breathing ability when singing,
whereas, in fact, he had sexual intercourse with her. In both these cases, X was convicted of
rape, the court refusing to recognise the existence of any "consent" to intercourse. This type
of mistake is a mistake relating to the nature of the act, and is referred to in legal terminology as error in negotio ("mistake regarding the type of act").
379
In C 1952 (4) SA 117 (O), a woman was sleeping during a hot summer night and woke to find
a man having sexual intercourse with her. She thought that the man was her husband, and
allowed him to continue, but then discovered that the man was not, in fact, her husband, but
another man, namely X. X was convicted of rape. The court stated that consent that prevents
sexual intercourse from amounting to rape required not only a mental state of willingness in
respect of the type of act, but also willingness to perform the act with the particular man who,
in fact, has intercourse with her. This type of mistake is a mistake, not regarding the nature of
the act, but regarding the identity of X. This type of mistake is referred to in legal terminology as error in persona (freely translated "mistake regarding the identity of the perpetrator").
380
4 The consent may be given either expressly or tacitly. There is no qualitative difference
between express and tacit consent.
5. The consent must be given before the otherwise unlawful act is committed. Approval
given afterwards does not render the act lawful.
6. In principle, consent must be given by the complainant herself. However, in exceptional
circumstances, someone else may give consent on her behalf, such as where a parent
consents to an operation to be performed on his or her child.
87
CRW2601/1
Activity 6.2
Y participates in a rugby game. According to the rules of the game, a player may be
tackled to the ground by an opponent, but only if he is in possession of the ball. In the
course of the game, X tackles Y seconds after the latter has already passed the ball to a
team-mate. Y has three broken ribs as a result of the tackle. X is charged with assault. You
are his legal representative. What defence would you rely on?
Feedback
9
The appropriate defence is the ground of justification known as consent. X's act of tackling Y
is justified by consent. Somebody who takes part in sport tacitly consents to the injuries that
are normally to be expected in the course of that sport. Most authorities agree that voluntary
participation in a particular type of sport implies that the participant also consents to injuries
that may be sustained as a result of acts that contravene the rules of the game, provided
such acts are normally to be expected when taking part in that sport. See Criminal Law 104.
There would, however, be no justification if X, for instance, had intentionally assaulted Y so
that he would be unable to play rugby for the rest of the season. That would be against the
legal convictions of society.
6.4
PRESUMED CONSENT
381
(Criminal Law 106-107)
X may rely on the ground of justification of presumed consent if he acts in defence of, or in the
furthering of, Y’s interests, in situations where Y’s consent to the act is not obtainable, but there
are, nonetheless, at the time of X’s conduct reasonable grounds for assuming that Y would
indeed have consented to X’s conduct had he been in a position to make a decision about it.
382
You may find reference in other criminal-law law textbooks to this type of justification under
the headings of “spontaneous agency”, “unauthorised administration” or “negotiorum gestio”.
383
In cases of presumed consent, for example, X, an ambulance driver, transports an unconscious
Y to the hospital for emergency services. Even though Y did not give X any permission to
transport her to the hospital, such consent is presumed, and X may not be charged with the
crime of kidnapping. Similarly, Z, a surgeon, performs an emergency operation on Y at the
hospital. In other situations, where no consent is provided, Z’s act conforms to the definitional elements of assault, however, Z’s conduct is justified by the ground of justification of
presumed consent.
384
385
The requirements for successfully relying on this ground of justification are:
88
386
6.5
OBEDIENCE TO ORDERS
(Criminal Law 134-136)
387
An otherwise unlawful act may be justified by the fact that the person, when committing
the act, was merely obeying the order of somebody else to whom he was subordinate. This
ground of justification is called obedience to orders. Such situations mostly occur with reference to the conduct of subordinates in the defence force and the police, but may also include
other persons such as municipal police officers.
388
This justification mainly concerns obedience to an unlawful order issued by a superior. There
are two opposing approaches whether obedience to an order from a superior may justify an
act. The first view states that subordinates must always be obedient to their superior’s order
(they have a duty of “blind obedience” to the superior’s order). In such circumstances, obedience to orders constitute a ground of justification. This is an unacceptable interpretation, as
many atrocities may occur by following an unlawful order issued; e.g. the rape of women by
Serbian soldiers in Bosnia. The second view holds that obedience to orders is not a ground
of justification. According to this version, a subordinate must, before complying with any
order issued to him, first decide for himself whether it is lawful or unlawful. This point
of view will not be very conducive to discipline in law enforcement or armed forces. There
is a third possibility which adopts a middle course between the first and second views. This
middle course is adopted in the cases of Smith (1900) 17 SC 561 and Banda 1990 (3) SA 466
(B). In these case, the following rule was applied: a soldier is compelled to obey an order
only if the order is manifestly lawful. If it is manifestly unlawful, he may not obey it; and
if he does, he acts unlawfully. In our opinion, this middle course is preferable. The middle
course has also been adopted in section 199(6) of the Constitution, which provides that no
member of any security service may obey a manifestly illegal order.
389
89
CRW2601/1
In S v Mostert 2006 (1) SACR 560 (N), a traffic officer charged with the crime of assault relied
on the defence of obedience to orders. The court held that obedience to orders entailed an
act performed by a subordinate on the instruction of a superior, and was a recognised defence in law. Although the defence of obedience to orders usually arises in a military context,
its application is not exclusive to soldiers. For the proper functioning of the police and the
protection services, it is essential that subordinates obey the commands of their superiors.
The court held that there were three requirements for this defence, namely (1) the order must
emanate from a person in lawful authority over the accused; (2) the accused must have been
under a duty to obey the order; and (3) the accused must have done no more harm than was
necessary to carry out the order. Regarding the second requirement, the test was whether
the order was manifestly and palpably unlawful. Therefore, the court applied the principle
laid down in the Constitution (s 199(6)), namely that the defence of obedience to orders will
be successful, provided the orders were not manifestly unlawful.
390
Activity 6.3
X, a member of the South African Police Service, is charged with assault with intent to do
grievous bodily harm. The facts before the court are that she had instructed a German
shepherd dog to attack a beggar loitering in a park. The defence argues that X's act was
justified because her superior officer had instructed her to get rid of all the beggars in
the park by setting the police dogs on them. You are the state prosecutor. What would
your response be to this line of reasoning?
10
Feedback
According to the decision in Mostert, X cannot rely on the ground of justification known
as obedience to orders in these circumstances. The order was manifestly unlawful and,
therefore, X's conduct is also unlawful.
6.6
OFFICIAL CAPACITY
391
6.6.1
(Criminal Law 107-108)
Definition
An act that would otherwise be unlawful is justified if X, by virtue of her holding a public
office, is authorised to perform the act, provided the act is performed in the course of
the exercise of her duties.
6.6.2
Examples of the application of official capacity as ground of
justification
The following are EXAMPLES of cases in which X's act, despite initially seeming to be unlawful (since it complies with the definitional elements of the relevant crime), transpires, upon
closer scrutiny, not to be unlawful because it is justified by the ground of justification known
as official capacity:
392
90
y Possessing drugs amounts to the commission of a crime. Nevertheless, the clerk of the
court whose official duty it is to exercise control over exhibits at a court will not be guilty
of unlawfully possessing drugs if she exercises control over drugs that are exhibits in a
current court case.
y To touch or search another inappropriately without her consent amounts to the commission
of crimes such as assault, indecent assault or crimen iniuria. Nevertheless, X does not commit
any crime in the following circumstances, despite the fact that she has searched Y without
Y's consent: X is a member of the security personnel at a custom-post or international
airport. It is her duty to physically search people crossing international borders in order
to ascertain whether they have hidden prohibited articles (such as drugs or weapons)
on their bodies or in their clothing. Y is someone who intends crossing the international
border and who is searched by X, who is acting in her official capacity.
Arresting a criminal or suspect is an example of an act performed in an official capacity, which
is often encountered in practice. The questions of who may arrest and in what circumstances
are matters forming part of the course in Criminal Procedure and will not be discussed here.
However, it is important to note that section 49 of the Criminal Procedure Act 51 of 1977
provides that people who attempt to arrest a criminal or suspected criminal may, in certain
narrowly defined circumstances, kill the suspect if the latter resists the attempt or if she attempts to flee.
393
6.7
EXCURSUS: DISCIPLINARY CHASTISEMENT
394
6.7.1
(Criminal Law 117-120)
Background
In terms of the common law, chastisement of a child by a parent or teacher was justified only if
it was moderate and reasonable (Hiltonian Society v Crofton 1952 (3) SA 130 (A) 134). This was
found to be necessary in order to maintain authority and in the interests of the child's education. The question whether chastisement was moderate and reasonable depended on the
circumstances of each case, such as the child's age, gender, build and health, the nature of
the transgression and the nature and extent of the punishment (Lekgathe 1982 (3) SA 104 (B)
109). It was also held that the child must have earned the punishment; this means that the
child must have transgressed, or have threatened to transgress. However, as will be discussed
below, both teachers and parents do not have the right to punish their children (or children
in their charge) anymore.
395
6.7.2
Teachers no longer have a right to impose corporal punishment
Before the Constitution came into operation, not only parents, but also teachers and people in
loco parentis ("in place of a parent"), such as people in charge of school hostels, had the right
to punish the children in their charge with moderate and reasonable corporal punishment in
order to maintain authority and discipline. However, in accordance with the letter and spirit
of the Constitution (more particularly, the right to dignity (s 10); the right to "freedom and
security of the person" and, thereunder, the right "not to be treated or punished in a cruel,
inhuman or degrading way" (s 12) and the right of a child to be protected from maltreatment,
neglect, abuse or degradation (s 28(1)(d)), legislation was enacted in 1996 banning corporal
punishment administered at schools.
396
91
CRW2601/1
Section 10 of the South African Schools Act 84 of 1996 provides that no person may administer corporal punishment at a school to a learner, and that any person who contravenes this
provision is guilty of an offence and liable, on conviction, to a sentence that could be imposed
for assault. In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC), the
Constitutional Court held that the prohibition of corporal punishment was part and parcel
of a national programme to transform the education system, and bring it in line with the
Constitution. The state was further under a constitutional duty to take steps to help diminish the amount of public and private violence in society generally and to protect all people,
especially children, from maltreatment, abuse or degradation (paras 780 F-G). The court ruled
that the ban on corporal punishment laid down in section 10 applies to all schools in South
Africa, both state and private.
397
6.7.3
Parents’ right to impose corporal punishment unconstitutional
Since child abuse at the hands of parents is so prevalent in South Africa, the question has also
arisen whether corporal punishment of children by their parents should not be completely
banned. Burchell expresses the point of view that, in terms of the constitutional rights of children,
"corporal punishment of any nature inflicted on a child of any age by any person, including a
parent for educational or correctional objectives … is the most defensible position in South
Africa" (Burchell supra 204). Section 39(3) of the Constitution requires that legislation, common
law and customary law be compatible with the Bill of Rights. Therefore, it may be contended
that even the reasonable and moderate corporal punishment defence amounts to an infringement of children's rights, in particular, children's rights to dignity and physical integrity.
398
This was also the viewpoint in YG v S 2018 (1) SACR 64 (GJ), where the South Gauteng High
Court ruled that the reasonable chastisement defence as currently recognised in the common law is not constitutionally justifiable (para [85]). X was charged in the regional court
with assault to do grievous bodily harm in respect of his 13-year-old son, M, as well as of
his wife. The two assaults occurred, allegedly, at the family home on the same day. X was
convicted on both charges and appealed to the Gauteng High Court on the ground that he
was exercising his right as a parent to chastise M by meting out reasonable corporal punishment for M’s indiscipline. X had caught M using one of the family’s IPads, and accused M of
watching pornographic material. M denied this, and when M refused to admit as required
by X, he (X) hit him a number of times. X told the court that they are a Muslim family, and
that pornography was strictly forbidden.
399
The court of appeal (High Court) was of the view that it was in the interests of justice for it to
determine the constitutionality of the defence (para [30]) because the constitutional rights
implicated are the rights of children, “who are afforded particular protection under the Bill of
Rights” (para [28]). The court also emphasised its duty under sections 8(1) and 39(2) to develop
the common law in line with the Bill of Rights (para [28]). The court identified the following
relevant rights in this matter: the right to human dignity (s 10); the right to equal protection
(s 9(3)); the right to be free from violence (s 12(1)(c)); the right not to be punished in a cruel,
inhuman or degrading way (s 12(1)(e)); the right of children to be protected from maltreatment, neglect, abuse or degradation (s 28(1)(d)), and the constitutional principle that a child’s
best interests are of paramount importance in every matter concerning the child (s 28(2)).
400
The court ruled that the defence of reasonable and moderate parental chastisement undermines a child’s right to dignity, and also does not give children equal protection under the
law since it allows for adult victims of assault and children victims to be treated differently
(para [74]). The court could find no justification for such infringement of the relevant rights.
401
92
Because the principle of legality prohibits retrospective application of the law, the ruling on
the unconstitutionality of the defence was not applied to the accused. However, the merits
of his conviction was considered, and the court upheld the trial court’s finding that X had
exceeded the bounds of reasonable or moderate chastisement.
This decision was challenged in Freedom of Religion South Africa (FOR SA) v Minister of Justice
and Constitutional Development and Others 2019 (11) BCLR 1321 (CC). FOR SA submitted that
the reasonable chastisement defence does not infringe on the dignity of the child, or any
of the child’s rights, but constitutes “loving parental chastisement applied for the benefit of
the child and in his or her best interest, [which] gives dignity to the child” (para [51]). It was
also argued that the High Court’s conclusion that the defence is unconstitutional stemmed
from an erroneous equation of reasonable and moderate correction with physical violence
and abuse. Instead, FOR SA submitted, the High Court should have taken into account the
constitutional right of parents to religious freedom, and the constitutional right of children
to parental care. In a unanimous judgment, the Constitutional Court held that the common
law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of sections 10, 12(1(c), and 28(2) of the Constitution. Children may still be effectively
disciplined without resorting to moderate and reasonable chastisement, as less restrictive
means to achieve discipline are available (paras [68]-[71]). The appeal was dismissed.
402
6.8
EXCURSUS: TRIVIALITY
(Criminal Law 121-122)
403
If X commits an unlawful act, however, the degree in which he contravenes the law is minimal
or trifling, a court will not convict him of the crime in question. This is because of the maxim
“de minimis non curat lex”, which means that courts will not concern itself with trifling matters.
This principle came into play in the case of Kgogong 1980 3 SA 600 (A), where X was convicted
of theft because he had taken a small piece of worthless waste paper. The Appeal Court overruled the conviction because of triviality. There is much opposition to classify triviality as a
ground of justification. This will mean that if X has committed an unlawful and culpable act
which complies with the definitional elements of the crime (such as the theft of a pen); X is
nevertheless afforded a defence because the courts’ time should not be wasted with mere
trivialities. Still, to steal a pen is just as unlawful as to steal a motor car. Unlawfulness cannot,
like culpability, be “graded” into degrees. An act is either lawful or unlawful. Whether this
principle will succeed, either as to the trifling nature of the act, or of the infringement of the
law, or whether triviality should be regarded as a complete defence, or merely a ground for
mitigation of punishment will depend upon the circumstances of each individual case.
404
GLOSSARY
volenti non fit iniuria
405
407
error in negotio
error in persona
409
411
negotiorum gestio
no wrongdoing is committed in respect of somebody who
has consented
406
a mistake relating to the nature of the act
408
a mistake relating to the identity (of the accused)
410
presumed consent or spontaneous agency
412
93
CRW2601/1
413
de minimis non curat lex
415
417
in loco parentis
boni mores
contra bonos mores
419
the law does not concern itself with trivialities
414
in the place of a parent
416
good morals; the legal convictions of society
418
against good morals or the legal convictions of society
420
SUMMARY
422
1. Although private defence and necessity are closely related, there are the following
important differences between them:
423
425
Private defence
Stems from human conduct
Directed against an unlawful attack
427
Necessity
424
Stems from either human conduct or non-human intervention (i.e chance circumstances)
426
Directed against the interests of an innocent
third party or consists in the violation of a legal
provision
428
2. Only relative compulsion qualifies as necessity – in the case of absolute compulsion, there
is no act.
3. See the discussion above for the requirements for a successful plea of necessity.
4. In Goliath 1972 (3) SA 1 (A), it was held that necessity could constitute a complete defence
to a charge of murder.
5. The test for necessity is objective. However, a mistaken belief in the existence of an
emergency (putative necessity) may exclude X's culpability.
6. Consent to harm or injury is a ground of justification, provided it is not contrary to the
legal convictions of society.
7. See the discussion above for the requirements for a successful plea of consent.
8. Spontaneous agency takes place when X performs an act in Y's interests, in her (Y's)
absence, and without her knowledge and consent.
9. An act in obedience to an unlawful order can be justified only if the order is not manifestly
unlawful.
10. An act that would otherwise be unlawful is justified if the person holds a public office that
authorises her to perform such an act, provided she performs the act in the execution of
her official duties.
11. Parents and teachers are no longer entitled to inflict moderate and reasonable corporal
punishment on their children to maintain authority and in the interests of the child's
education.
12. The principle that the law does not concern itself with trifles can exclude the unlawfulness
of an act.
94
Further reading
For more information on necesouhtdroicsity and other defences excluding unlawfulness, read:
• Burchell Principles of Criminal Law (2016) 164–237.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 105–149.
Self-assessment
6
(1) Distinguish between private defence and necessity.
(2) Distinguish between absolute and relative compulsion, and indicate which of the two
constitutes necessity.
(3) Name and discuss the requirements for a successful plea of necessity.
(4) Discuss whether an innocent person may be killed in a situation of necessity.
(5) May consent constitute a ground of justification in the following circumstances?
(a) if X is charged with rape
(b) if X, a medical practitioner, ends the life of a terminally-ill patient out of compassion
for her suffering
(c) if a rugby player is injured in the course of a match
(d) when indecent acts are committed by adults
(6) Name and discuss the requirements for a successful plea of consent as a ground of
justification.
(7) Discuss the following grounds of justification:
(a) spontaneous agency
(b) trifling character of an act
(8) Discuss whether an otherwise unlawful act may be justified because the perpetrator,
when she committed the act, obeyed the order of a person to whom she was subordinate.
(9) May officials occupying a public office, who commit acts that would otherwise be unlawful, rely as a defence on the fact that they are entitled to perform these acts because the
acts were performed in the course of their official duties?
95
CRW2601/1
LEARNING UNIT 7
Culpability and criminal capacity
Contents
Learning outcomes
7.1 Background
7.2 The requirement of culpability in general
7.2.1 Introduction
7.2.2 Culpability and unlawfulness
7.2.3 Terminology
7.2.4 Criminal capacity and forms of culpability
7.2.5 The principle of contemporaneity
7.2.6 Classifications in the discussion of culpability
7.3 Criminal capacity
7.3.1 Definition
7.3.2 Criminal capacity distinguished from intention
7.3.3 Two psychological legs of test
7.3.4 Defences excluding criminal capacity
7.3.5 Arrangement of discussion
7.4 The defence of non-pathological criminal incapacity
7.4.1 General
7.4.2 The law before 2002 (when judgment in Eadie was delivered)
7.4.3 The judgment in Eadie
7.4.4 The present law
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the broader concept of "culpability"
• demonstrate your understanding of the principle of contemporaneity by
• recognising the potential applicability of the principle to a given set of facts
• applying the relevant case law to such a set of facts
• distinguish criminal capacity from intention (and, more particularly, awareness of unlawfulness) by demonstrating an understanding of the two tests
• express an opinion on whether an accused can rely successfully on the defence of nonpathological criminal incapacity, having regard to
– the two psychological legs of the test for this defence
– the cause/s of the criminal incapacity
– the onus of proof
– the role of expert evidence from psychiatrists and/or psychologists
96
–
7.1
the courts' practice of treating this defence with great caution
BACKGROUND
At this stage, we have already set out three of the four elements of criminal liability, namely
430
1. the act (conduct)
2. compliance with the definitional elements
3. unlawfulness
In this study unit, we will begin to explain the fourth and last general element of liability,
namely culpability. The requirement of culpability contains many facets, and the discussion
of this requirement (or "element") extends to the end of study unit 13. In this study unit,
we will first give a general explanation of the requirement of culpability. Thereafter, we will
discuss the requirement of criminal capacity, which will be followed by a discussion of the
general defence of criminal incapacity (better known as the defence of ''non-pathological
criminal incapacity").
431
7.2
THE REQUIREMENT OF CULPABILITY IN GENERAL
(Criminal Law 127-136)
432
7.2.1
Introduction
The mere fact that a person has committed an act that complies with the definitional elements and that is unlawful is still not sufficient to render him criminally liable. One very
important general requirement remains to be satisfied: X's conduct must be accompanied
by culpability. This means, broadly speaking, that there must be grounds upon which, in the
eyes of the law, he can be reproached or blamed for his conduct. This will be the case if he
has committed the unlawful act in a blameworthy state of mind.
433
X can be blamed for his conduct only if the law could have expected him to avoid or shun
the unlawful act or not to proceed with it. Thus, for instance, the legal order cannot blame a
434
97
CRW2601/1
mentally ill ("insane") person or a six-year-old child who has committed an unlawful act for
that act, since they cannot be expected to act lawfully. Neither can X's conduct be described
as blameworthy in a case such as the following: On leaving a gathering, X takes a coat, which
he genuinely believes to be his own, from the row of pegs in the entrance hall of the building.
The coat actually belongs to Y, although it is identical to X's. But for the requirement of culpability, X would be guilty of theft. In the circumstances, X is unaware that his conduct is unlawful.
7.2.2
Culpability and unlawfulness
Whether culpability is present need be asked only after the unlawfulness of the act has been
established. It would be nonsensical to attach blame to lawful conduct. The unlawfulness
of the act is determined by criteria that are applicable to everybody in society, whether rich
or poor, clever or stupid, young or old. This is why it is just as unlawful for somebody who is
poor to steal as it is for somebody who is rich, and why it is just as unlawful for psychopaths
– who find it very difficult to control their sexual desires – to commit sexual offences as it is
for normal people. Criteria employed to ascertain the unlawfulness of an act do not refer to
the personal characteristics of the perpetrator.
435
However, when we come to the question of culpability, the picture changes: the focus now
shifts to the perpetrator as an individual, and the question we ask is whether this particular
person – considering his personal characteristics, aptitudes, gifts, shortcomings and mental
abilities, as well as his knowledge – can be blamed for his commission of the unlawful act.
436
As pointed out in the previous study unit, the unlawfulness of the act may be excluded by
grounds of justification (such as private defence and consent). Culpability, on the other
hand, may be excluded because X lacked criminal capacity or by some other ground
excluding culpability, such as mistake. (This will become clear in the course of the discussion that follows.)
437
Students often mistakenly use the term "ground of justification" as a synonym for any
defence that X may raise – even a defence that should exclude his culpability. This
should be avoided. Grounds of justification refer only to defences that exclude the
unlawfulness of the act. "Defence" denotes any ground that excludes liability and
includes, for instance, automatism, impossibility, the defence of absence of a causal
link, the grounds of justification, criminal incapacity and mistake.
7.2.3
Terminology
In practice, the Latin term mens rea is mostly used to denote culpability. Another term sometimes used in place of mens rea is "fault". Although these terms are generally used by our
courts, we prefer to use the expression "culpability".
438
7.2.4
Criminal capacity and forms of culpability
Before it can be said that a person acted with culpability, it must be clear that such a person
was endowed with criminal capacity. The term "criminal capacity" refers to the person's mental
ability. This will become clearer in the discussion of criminal capacity that follows. It will be
shown that mentally ill persons and young children, for example, do not possess sufficient
mental abilities to hold them liable. Such persons cannot be blamed for any unlawful conduct.
439
98
But the mere fact that X has criminal capacity, is not sufficient to warrant an inference that
he acted with culpability. There must be something more: X must have acted either intentionally or negligently. Intention and negligence are usually referred to as the "two forms of
culpability". If X (who has criminal capacity) carries away somebody else's property, but is
unaware that what he is carrying away belongs to somebody else, thinking that it belongs
to him, it cannot be said that he "intentionally" removed another's property. Therefore, X
cannot be convicted of theft, since, as we will see later, the form of culpability required for
theft is intention, and the misapprehension under which X laboured (the mistake he made)
has the effect of excluding intention, and, therefore, also culpability.
440
The contents of the concept of culpability may be summarised briefly as follows:
441
(Among certain writers, there is a difference of opinion on certain theoretical aspects of
culpability. This is discussed in Criminal Law (131-136), where the author refers to the psychological and the normative concept of culpability. For the purposes of this course, we do not
expect you to read or know about this aspect of the topic.)
442
7.2.5
The principle of contemporaneity
(Criminal Law 129-130; Reader 97-99)
443
The culpability and the unlawful act must be contemporaneous. This means that in order
for a crime to have been committed, there must have been culpability on the part of X at
the very moment when the unlawful act was committed. No crime is committed if culpability existed only prior to the commission of the unlawful act, but not at the moment the
act was committed, or if it came into being only after the commission of the unlawful act.
444
Let's use a fictitious EXAMPLE to illustrate this: X wishes to shoot his mortal enemy, Y. On
driving to the place where the murder is to be committed, X accidentally runs down, and
kills a pedestrian with his car. It turns out that, unbeknown to X, the pedestrian was, in fact,
Y. In these circumstances, although there is undoubtedly a causal connection between X's
act and Y's death, X could not be convicted of murdering Y. At the time of the accident, X
lacked the necessary intention to kill.
445
The decision in Masilela 1968 (2) SA 558 (A) constitutes an apparent exception to the general
rule in relation to contemporaneity. In this case, X assaulted and strangled Y, intending to kill
him; then, believing him to be dead, he threw his body onto a bed, and ransacked the house.
He then set fire to the bed and the house, and disappeared with the booty. Y was, in fact, still
alive after the assault, and died in the fire. The Appellate Division confirmed X's conviction of
murder. The court did not accept the argument that there were two separate acts, of which
the first, although committed with the intention to murder, did not actually kill Y, while the
second did kill Y, but was not accompanied by the intention to murder (because to dispose of
what is believed to be a corpse cannot be equated with an intention to kill a human being).
According to the Appellate Division, X's actions amounted to "a single course of conduct".
446
99
CRW2601/1
Read
Read the following decision in the Reader: Masilela 1968 (2) SA 558 (A).
The principle of contemporaneity is closely related to the rule that a mistaken belief concerning the causal chain of events usually does not exclude intention. The latter rule will be
discussed later.
447
7.2.6
Classifications in the discussion of culpability
From the discussion of culpability thus far, it is clear that the concept has many facets. Because
of the scope of the culpability requirement, it is not feasible to discuss it in only one study unit.
Therefore, we will discuss this requirement over a number of study units as follows: the rest
of this study unit will deal with a discussion of criminal capacity in general, as well as the first
defence of criminal incapacity, which is known as the defence of non-pathological criminal
incapacity. In the following study unit (study unit 8), we deal with the other two defences that
exclude criminal capacity, namely the defences of mental illness and youth. Study units 9 and
10 deal with intention, study unit 11 with negligence, unit 12 with intoxication and provocation, and unit 13 with the instances in which the requirement of culpability is disregarded.
448
7.3
CRIMINAL CAPACITY
(Criminal Law 136-139)
449
7.3.1
Definition
The term "criminal capacity" refers to the mental abilities or capacities that a person must
have in order to act with culpability and to incur criminal liability.
450
A person is endowed with criminal capacity if he has the mental ability to
1. appreciate the wrongfulness of his act or omission
and
2. act in accordance with such an appreciation of the wrongfulness of his act or omission.
If one (or both) of these abilities is lacking, the person concerned lacks criminal capacity,
and cannot be held criminally responsible for an unlawful act that he has committed
while he lacked such ability.
7.3.2
Criminal capacity distinguished from intention
Criminal capacity is the foundation or indispensable prerequisite of the existence of culpability
in any of its forms. The question whether X acted intentionally or negligently arises only once
it is established that he had criminal capacity. An investigation into X's criminal capacity is independent of, and covers quite a different field from, the investigation into whether he acted
intentionally or negligently. The investigation into his criminal capacity is concerned with his
mental abilities, whereas the enquiry into whether he acted intentionally or negligently is
concerned with the presence or absence of a certain attitude or state of mind on the part of X.
More particularly, an investigation into X's intention comprises an investigation into his knowledge. Criminal capacity has nothing to do with X's knowledge; it concerns his mental abilities.
452
100
Students often confuse the test to determine criminal capacity with that to determine
intention, and, more particularly, that aspect of intention known as awareness of
unlawfulness. A statement such as the following reveals this confusion of concepts:
"X did not know that his act was unlawful, and therefore he lacked criminal capacity".
The reason this statement is wrong is that absence of awareness of unlawfulness does
not mean that X lacked criminal capacity; it means that X lacked intention. (The fact
that awareness of unlawfulness forms part of the criminal-law concept of intention will
become clear in the course of the later discussion of intention.)
7.3.3
Two psychological legs of test
It is apparent from the above definition of criminal capacity that this concept comprises two
psychological components: firstly, X's ability to appreciate the wrongfulness of his act or
omission, and secondly, his ability to conduct himself in accordance with such an appreciation of the wrongfulness of his act or omission.
453
The first component (or first leg of the test) may be expressed in various ways: besides the expression "ability to appreciate the wrongfulness of the act", we may also speak of the "ability to
appreciate the unlawfulness of the act" or "the ability to distinguish between right and wrong".
Normally, it does not matter which of these expressions you use; they are simply synonyms.
454
The two psychological components mentioned above refer to two different categories of
mental functions. The first function, that is, the ability to distinguish between right and
wrong, lawful or unlawful, forms part of a person's cognitive mental function. This function
is related to a person's reason or intellect, in other words, his ability to perceive, to reason
and to remember. Here the emphasis is on a particular person's insight and understanding.
455
The second psychological component, incorporated in the second leg of the test to determine
criminal capacity, refers to a person's ability to conduct himself in accordance with his insight
into right and wrong. This is known as a person's conative mental function. This function
relates to a person's ability to control his behaviour in accordance with his insights – which
456
101
CRW2601/1
means that, unlike an animal, he is able to make a decision, set himself a goal and pursue it;
he is also able to resist impulses or desires to act contrary to what his insights into right and
wrong have revealed to him. Here the keyword or idea is "self-control".
In short, the cognitive and conative functions amount to insight (ability to differentiate)
and self-control (power of resistance) respectively. These two functions render a person
responsible for his conduct. (The exposition of these two components of the test to determine criminal capacity is based on paragraphs 9.7-33 of the Report of the Commission of
Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters RP 69/1967
(the "Rumpff Report").)
457
7.3.4
Defences excluding criminal capacity
First, there are the two particular defences excluding criminal capacity, namely the defence of
mental illness, which is dealt with statutorily in sections 77 to 79 of the Criminal Procedure
Act 51 of 1977, and the defence of youthful age, which is also dealt with statutorily in section 7(1) of the Child Justice Act 75 of 2008. These two defences are referred to as "particular
defences" because they can succeed only if the mental inabilities are the result of particular
circumscribed mental characteristics to be found in the perpetrator, namely a mental illness
or mental defect as envisaged in section 78(1) of the Criminal Procedure Act (in the case of
the defence of mental illness), or the perpetrator's youthful age (in the case of the second
particular defence).
458
Furthermore, these two particular defences are subject to certain rules applicable only to
them: for example, the defence of mental illness is specifically governed by sections 77 to
79 of the Criminal Procedure Act, which, inter alia, provide for special orders to be made by
the court if the defence is successful (e.g. that X may not leave the court as a free person, but
that he be detained in a psychiatric hospital). If X relies on his youthful age as a defence, as
explained in section 7(1) of the Child Justice Act 75 of 2008, the question of his criminal capacity is, in terms of the Child Justice Act 75 of 2008, governed by certain arbitrary age limits.
459
Apart from these two specific defences of criminal incapacity, there is also a general defence of criminal incapacity. This general defence is also known as "the defence of nonpathological criminal incapacity". The success of this general defence is not dependent
460
102
upon the existence of specific factors or characteristics of the perpetrator that led to his
criminal incapacity. However, the judgment of the Supreme Court of Appeal in Eadie 2002
(1) SACR 663 (SCA) raises doubts about whether the defence of non-pathological criminal
incapacity still exists. In the meantime, until there is more clarity on this issue in our case law,
we will assume that the defence still exists. This matter is discussed in more detail in 7.4 below.
7.3.5
Arrangement of discussion
In the discussion that follows, we will first consider the general defence of criminal incapacity. This will be followed by a discussion of the two specific defences of criminal incapacity
referred to above, namely mental illness and youth.
461
7.4
THE DEFENCE OF NON-PATHOLOGICAL CRIMINAL
INCAPACITY
462
7.4.1
(Criminal Law 139-149)
General
All the instances in which X relies on criminal incapacity as a defence, other than cases in
which he relies on mental illness and youth, fall under this heading. We can also refer to this
defence as the "general defence of criminal incapacity" in order to distinguish it from the
particular defences of mental illness and youth, which also deal with criminal incapacity.
463
In Laubscher 1988 (1) SA 163 (A), the Appeal Court first described this defence as "non-pathological criminal incapacity". The court adopted this description of the defence in order to
distinguish it from the defence of mental illness created in section 78 of the Criminal Procedure
Act. (This latter defence will be discussed later on.) The court stated that the defence created
in section 78 applies to pathological disturbances of a person's mental abilities – in other
words, the cases in which these disturbances can be traced to some illness of the mind. The
defence of non-pathological criminal incapacity, on the other hand, may succeed without any
need to prove that, at the time of the commission of the act, X was suffering from a mental
illness. For this defence to succeed, it is sufficient to prove that X lacked criminal capacity for
only a relatively brief period, and that the criminal incapacity was not a manifestation of an
ailing or sick (pathological) mental disturbance. It would therefore be sufficient to prove that,
for a relatively brief period during the commission of the act, X, owing to, for example, an
emotional collapse, was unable to act in accordance with his insights into right or wrong.
464
Until 19 February 2002, there was no doubt that our law recognised the defence of non-pathological criminal incapacity. However, on that date, the Supreme Court of Appeal delivered
a judgment in Eadie 2002 (1) SACR 663 (SCA) that casts doubt on whether this defence is
still recognised in our law. Before discussing the judgment in Eadie, we will first consider
the position in our law before the judgment in Eadie was delivered.
465
Note: When answering examination questions, you are free to abbreviate the rather
long expression "non-pathological criminal incapacity" to "NPCI".
103
CRW2601/1
7.4.2
The law before 2002 (when judgment in Eadie was delivered)
If the criminal incapacity is the result of a mental illness as envisaged in section 78(1) of the
Criminal Procedure Act, X's defence is one of mental illness in terms of that section; the merits
of this defence are assessed with reference to the principles applying to that defence. If the
criminal incapacity stems from youth, X's defence is the defence commonly called "youth".
If the criminal incapacity is neither the result of mental illness in terms of section 78(1), nor
of youth, it means that the defence of non-pathological criminal incapacity applies.
466
For this defence to succeed, it is not necessary to prove that X's mental inabilities resulted
from certain specific causes; more particularly, it is not necessary to prove that they were
caused by a pathological mental condition. If, on the evidence as a whole, the court is satisfied that at the time of the commission of the crime, X lacked the ability to appreciate the
wrongfulness of his act or to act according to such an appreciation, he must be found not
guilty, no matter what the cause of the inability.
467
The cause may be what can be called an "emotional collapse", shock, fear, anger, stress
or concussion. Such a condition may be the result of provocation by Y or somebody else,
and this may, in turn, be linked to physical or mental exhaustion resulting from Y's insulting
behaviour towards X, which strained his powers of self-control until these powers eventually
snapped. Intoxication may also be a cause of the inability. The inability may, furthermore,
be the result of a combination of factors, such as provocation and intoxication.
468
If X relies on this defence, the onus of proving beyond reasonable doubt that X had criminal
capacity at the time of the commission of the act rests upon the state. However, X must lay
a foundation for the defence in the evidence. There should preferably be expert evidence
by psychiatrists or clinical psychologists concerning X's mental abilities shortly before and
during the commission of the act. However, the courts do not regard expert evidence as
indispensable in order for the defence to succeed.
469
The two most important decisions in which this defence was recognised and applied are
Campher 1987 (1) SA 940 (A) and Wiid 1990 (1) SACR 561 (A).
470
7.4.3
The judgment in Eadie
In Eadie 2002 (1) SACR 663 (SCA), the Supreme Court of Appeal delivered a judgment that
raises doubts about whether there is still such a defence in our law.
471
The facts in this case are the following: X, a keen hockey player, consumed a large quantity
of liquor at a social function. Late at night, he got into his car and started driving home. Y,
the driver of another vehicle, overtook X's car and then drove very slowly in front of him so
that X could not overtake him. X eventually succeeded in overtaking Y. Y then drove at a
high speed behind X, with the lights of his car on bright. The two cars then stopped. X was
very angry, got out of his car, grabbed a hockey stick, which happened to be in the car, and
walked to Y's car. X smashed the hockey stick to pieces against Y's car, assaulted Y repeatedly,
pulled him out of his car, and then continued to assault him outside the car on the road. Y
died as a result of the assault. This was a case of "road rage". On a charge of murder, X relied
on the defence of non-pathological criminal incapacity. The court rejected his defence and
convicted him of murder.
472
The court discussed previous decisions dealing with this defence extensively, and then
held (in para 57 of the judgment) that there is no distinction between non-pathological
473
104
criminal incapacity owing to emotional stress and provocation, on the one hand, and
the defence of sane automatism, on the other. More specifically, the court said there is no
difference between the second (conative) leg of the test for criminal capacity (i.e. X's ability
to act in accordance with his appreciation of the wrongfulness of the act – in other words,
his ability to resist temptation), and the requirement that applies to the conduct element
of liability, namely that X's bodily movements must be voluntary. If X had alleged that, as a
result of provocation, his psyche had disintegrated to such an extent that he could no longer
control himself, it would have amounted to an allegation that he could no longer control
his movements, and that he, therefore, had acted involuntarily. Such a plea of involuntary
conduct is nothing other than the defence of sane automatism. (In order to properly understand the court's argument, we advise you to refresh your knowledge of the defence of
sane automatism by reviewing the discussion of this defence in 3.3.4 above.)
The court does not hold that the defence of non-pathological criminal incapacity no longer
exists, and, in fact, makes a number of statements that imply that the defence does still exist. Nevertheless, it declares that if, as a result of provocation, an accused person relies on
this defence, his defence should be treated as one of sane automatism (a defence that
can also be described as a defence by X that he did not commit a voluntary act). The court
emphasises the well-known fact that a defence of sane automatism does not succeed easily, and is, in fact, rarely upheld.
474
Read
Read the decision in the Reader: Eadie 2002 (1) SACR 663 (SCA).
7.4.4
The present law
After the Supreme Court of Appeal decision in Eadie, it is highly unlikely that an accused will
succeed with an argument that, as a result of non-pathological criminal incapacity (that is,
provocation, emotional stress, fear or anger), he acted voluntarily, but merely lacked criminal capacity. He would also have to adduce evidence that casts a reasonable doubt on the
voluntariness of his conduct. In reaching a conclusion, the court will consider the evidence
against its own experience of human behaviour. In Eadie, Navsa JA made the following
statement (in para 64):
475
Part of the problem appears to me to be a too-ready acceptance of the accused's ipse
dixit [the accused's own account] concerning his state of mind. It appears to me to be
justified to test the accused's evidence about his state of mind, not only against his
prior and subsequent conduct but also against the court's experience of human behaviour and social interaction. Critics may describe this as principle yielding to policy.
In my view, it is an acceptable method for testing the veracity of an accused's evidence
about his state of mind and as a necessary brake to prevent unwarranted extensions
of the defence.
Whether the court in Eadie introduced an objective, normative criterion in the otherwise
subjective test for criminal capacity, or merely applied existing rules of evidence that relate
to inferences drawn from objective facts to determine subjective intention, is not altogether
clear. In Snyman's view, the judgment is based on policy considerations that the law is opposed to affording a person who has killed another after being provoked by the latter
476
105
CRW2601/1
a complete defence, that is, a complete acquittal (Criminal Law 238). This means that if a
person is charged with murder and raises the defence of provocation, he will be excused by
the law only partially, and still be convicted of culpable homicide.
Until there is more clarity in our law on how the judgment in Eadie is to be interpreted, we
submit the following: Before 2002, the defence of non-pathological criminal incapacity
was not limited to cases in which, as a result of provocation or emotional stress, X briefly
lacked criminal capacity. It also applied to situations in which he lacked capacity owing to
other factors, such as intoxication, fear or shock. In our opinion, the Eadie case should be
limited to cases in which X alleges that it is as a result of provocation or emotional stress
that he lacked capacity. If he alleges that he momentarily lacked capacity owing to other
factors, such as intoxication, the defence (of non-pathological criminal incapacity) still exists.
However, if, as in the Eadie case, X alleges that he lacked capacity as a result of provocation
or emotional stress, his defence should be treated as one of sane automatism.
477
GLOSSARY
ipse dixit
478
mens rea
480
483
the accused's own account
479
481
literally "guilty mind"; in practice, the culpability requirement
SUMMARY
1. "Culpability", as an element of criminal liability, means that there are grounds upon which,
in the eyes of the law, the perpetrator (X) can be reproached or blamed for his conduct.
2. Culpability consists of criminal capacity plus either intention or negligence.
3. The culpability and the unlawful act must be contemporaneous.
4. See the above definition of the concept of criminal capacity.
5. Criminal capacity is based upon two psychological components, or legs, namely the
cognitive and the conative legs.
6. The cognitive component deals with a person's insight and understanding, and is present
if X has the ability to appreciate the wrongfulness of his act or omission.
7. The conative element deals with X's self-control and is present if X has the ability to conduct
himself in accordance with his appreciation of the wrongfulness of his act or omission.
8. Before 2002, it was generally accepted that there is a general defence of criminal incapacity
apart from the defence of mental illness set out in section 78(1) of the Criminal Procedure
Act and the defence of youth.
9. The general defence of criminal incapacity referred to above in the previous statement
was known as "non-pathological criminal incapacity". In this defence, X's mental inability
is the result of factors such as emotional stress resulting from provocation, intoxication,
shock, anger or fear.
10. In 2002, the Supreme Court of Appeal, in the case of Eadie, held that there is no difference
between the defence of non-pathological criminal incapacity resulting from provocation
or emotional stress, on the one hand, and the defence of sane automatism, on the other.
11. It is submitted that until such time as there is more clarity in our case law on the question
whether the defence of non-pathological criminal incapacity still exists, the judgment
in Eadie should be limited to cases in which X alleges that his incapacity was caused by
106
provocation or emotional stress. If he alleges that he momentarily lacked capacity owing
to other factors, such as intoxication, the defence of non-pathological criminal incapacity
still exists.
12. It is submitted that if, as in the Eadie case, X alleges that he lacked capacity as a result of
provocation or emotional stress, he can escape liability only if he successfully raises the
defence of sane automatism.
Further reading
For more information on criminal capacity and forms of culpability, read:
• Burchell Principles of Criminal Law (2016) 251–258.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 151–156.
7
Self-assessment
(1) Define, in a maximum of two sentences, the meaning of "culpability" (as an element of
criminal liability).
(2) Complete the following statement: Culpability = ............................................. plus either ....
............................... or ......................................
(3) The principle of contemporaneity in criminal law means the following: If the unlawful
act is committed at a certain time without any ............................, and the culpability is
present at a later time without there being an ............................... act at the same time, no
crime is committed.
(4) Define the concept of criminal capacity.
(5) Explain the difference between the concepts of "criminal capacity" and "intention".
(6) Name and explain the two psychological components, or "legs", of the test for criminal
capacity.
(7) Name three defences excluding criminal capacity.
(8) What was the meaning of the concept of non-pathological criminal incapacity before 2002?
(9) Discuss the decision in Eadie, especially the question whether the defence of nonpathological criminal incapacity still exists after this judgment.
107
CRW2601/1
LEARNING UNIT 8
Criminal capacity – mental illness and youth
Contents
Learning outcomes
8.1 Background
8.2 Mental illness
8.2.1 Introduction
8.2.2 Contents of section 78(1)
8.2.3 Analysis of section 78(1)
8.2.4 Mental illness or mental defect
8.2.5 Psychological leg of test
8.2.6 Onus of proof
8.2.7 Verdict
8.2.8 Diminished responsibility or capacity
8.2.9 Mental abnormality at the time of trial
8.3 Youth
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the defence of mental illness, having regard to
– both the biological (or pathological) and the psychological leg of the test for this
defence
– the cause/s of the criminal incapacity (mental illness or mental defect)
– the onus of proof
– the role of expert evidence from psychiatrists and/or psychologists
• decide whether, in a particular case of criminal incapacity, it would be better for the
accused to rely on the defence of mental illness or non-pathological criminal incapacity, having regard to
– the respective criteria
– the onus of proof
– the need for expert evidence (and its concomitant cost)
– the verdict in the case of a finding of incapacity
• distinguish between the result of a successful reliance upon the defence of criminal
incapacity and the result of a finding of diminished criminal capacity
• express an informed opinion on whether a child of any age under 14 years should be
found to have been criminally incapable on account of their youthful age
108
8.1
484
BACKGROUND
In study unit 7, we pointed out that
In that study unit, we began to discuss the concept of criminal capacity. We have already analysed that concept, and pointed out that there are three defences that may exclude criminal
capacity, namely the defence of non-pathological criminal incapacity, the defence of mental
illness (so-called insanity) and the defence of youth. We discussed the first of these three
defences in the previous study unit. In this study unit, we will discuss the other two defences.
485
8.2
MENTAL ILLNESS
486
8.2.1
(Criminal Law 149-156)
Introduction
Criminal capacity may be excluded by the mental illness or abnormality of the accused (X).
The defence of mental illness was previously known as the defence of "insanity". The latter
term has, however, fallen into disfavour in modern psychology. Some of the most important
sources dealing with the subject refer to it as "mental abnormality" or "mental illness", and
for this reason we prefer to use the expression "mental illness".
487
Since 1977, the whole subject relating to mental illness as a defence in criminal law has been
governed by legislation, more particularly by section 78 of the Criminal Procedure Act 51 of
1977. It is interesting to note that this is one of the few subjects in the general principles of
criminal law that is regulated by statute. As you will have gathered by now, almost all the
other principles or defences (such as automatism, causation, private defence, intention and
negligence) are governed by common law, which is that system of legal rules not contained
in legislation.
488
Before 1977, the South African courts, in dealing with the defence of mental illness, applied a
set of rules known as the "M'Naghten rules", which were derived from English law. However,
since these rules ceased to apply after 1977, we will not discuss them here. One of the most
important sources on the rules relating to this defence is the report of the Commission of
Inquiry into the Responsibility of Mentally Deranged Persons, dating from the late 1960s. The
chairman of the commission was Mr Justice Rumpff, then a judge of appeal and, later, Chief
Justice. The report of the commission is usually described as the "Rumpff Report".
489
8.2.2
Contents of section 78(1)
The test to determine the criminal capacity of mentally abnormal persons is contained in
section 78(1) of the Criminal Procedure Act 51 of 1977, which reads as follows:
490
109
CRW2601/1
A person who commits an act or makes an omission which constitutes an offence, and,
who at the time of such commission or omission suffers from a mental illness or mental
defect which makes him or her incapable
a. of appreciating the wrongfulness of his or her act or omission;
or
b. of acting in accordance with an appreciation of the wrongfulness of his or her act or
omission,
shall not be criminally responsible for such act or omission.
Note that the words "shall not be criminally responsible" in this section actually mean
"shall lack criminal capacity".
492
8.2.3
Analysis of section 78(1)
Before discussing the contents of section 78(1), consider the following diagram setting out
the test:
493
If you keep this diagram in mind, you should find it easier to understand the discussion that
follows.
494
The defence of mental illness brings us to an area of the law (and, more particularly, of criminal
law) in which the lawyer or judge not only has to have a knowledge of criminal law, but also
has to take cognisance of knowledge in other spheres, namely psychiatry and psychology.
495
110
This is what happens in section 78(1). The test enunciated in this section has two legs, which
are indicated in the diagram above in two squares marked A and B. The first square, marked
A, comprises the pathological leg (or biological leg, as it is sometimes called) of the test.
The second square, marked B, comprises the psychological leg of the test.
Note the plus sign (+) between the two squares (or legs of the test): before you can
succeed with the defence of mental illness, both legs of the test must be complied
with. The two legs do not apply in the alternative; they are not connected with an "or".
(In reality, there must be a causal connection between A and B – we merely use the
plus sign in order to simplify the exposition of the test.) Note, further, that the square
marked B contains two smaller subdivisions, each of which is put in a smaller square,
and marked (i) and (ii) respectively, and that these two subdivisions of the test apply
in the alternative, owing to the use of the word "or" in section 78(1). (In their answers,
students often use the word "and" where they should use "or", and vice versa. Please
make sure that you do not confuse these two options!)
The test set out in section 78(1) to determine whether X lacks criminal capacity embodies a
so-called mixed test in the sense that both pathological factors (which refer to X's illness –
see the first square, A) and X's mental abilities (that is, the psychological factors referred to
in the second square, B) are taken into account. We will now proceed to examine the two
legs of the test more closely.
496
8.2.4
Mental illness or mental defect
Firstly, we consider the first leg of the test in section 78(1), namely that at the time of the commission of the act, X must have been suffering from a mental illness or mental defect. This
requirement means the following:
497
1. The words "mental illness" or "mental defect" refer to a pathological disturbance of the
mental faculties. "Pathological" means "sick" or "diseased". The words "mental illness"
or "mental defect" do not refer to a mere temporary clouding of the mental faculties
due to external stimuli such as alcohol, drugs or even provocation (Mahlinza 1967 (1) SA
408 (A) 417). Thus if X temporarily loses her wits because a brick fell onto her head, her
condition could not be described as a "mental illness".
2. It is clear from the further subsections of section 78, and from section 79, that the court
must determine whether X was suffering from a mental illness or mental defect with the
aid of expert evidence given by psychiatrists. The psychiatrists will examine X while
she is detained in a psychiatric hospital, or any other place designated by the court, and
then report their findings to the court.
3. It is not necessary to prove that a mental illness or defect originated in X's mind: the defence
may be successful even if the origin of the illness was organic (i.e. stemmed from X's
physical organs, as opposed to her mind). An example in this respect is arteriosclerosis
(i.e. a hardening of the walls of an artery).
4. The duration of the mental illness is not relevant. It may be of either a permanent or
a temporary nature. In the latter case, it must, of course, have been present at the
time of the act. If X was mentally ill before and after the act, but she committed it at a
time when she happened to be sane, she does not lack criminal capacity. Such a lucid
interval between periods of mental illness is referred to in legal terminology as a lucidum
intervallum ("lucid interval").
111
CRW2601/1
5. Although intoxication in itself does not constitute mental illness, the chronic abuse
and subsequent withdrawal of liquor can lead to a recognised mental illness known
as delirium tremens (Holliday 1924 AD 250). If X committed the act while she was in this
condition, and the condition resulted in her lacking the required mental abilities, she may
successfully rely on the defence.
6. A "mental defect" can be distinguished from a "mental illness" in that it is characterised
by an abnormally low intellect, which is usually already evident at an early stage and
is of a permanent nature. "Mental illness", on the other hand, usually manifests later in
life and is not necessarily of a permanent nature. A mental defect usually hinders a child's
development or prevents the child from developing or acquiring elementary social and
behavioural patterns.
8.2.5
Psychological leg of test
If the test to determine mental illness was formulated in such a way that everything depended
upon whether, from a psychiatric point of view, X suffered from a mental illness, a court would
be almost entirely in the hands of psychiatrists. However, the question for the lawyer is not
merely whether a person was mentally ill, but also whether her mental disease resulted in
the impairment of certain mental abilities. This brings us to the second leg of the test for
criminal incapacity, contained in square B in the diagram. This part of the test is subdivided
into two parts, which operate in the alternative.
498
In this part of the test, we refer to the two psychological factors that render a person responsible for her acts, namely the ability to distinguish between right and wrong (cognitive mental
faculty), and the ability to act in accordance with such an insight (conative mental faculty).
We have already discussed and explained these two factors in the general discussion of the
concept of criminal capacity in the previous study unit (see 7.3.3). Review that discussion
now. Note that section 78(1) requires that the lack of mental abilities be attributable to the
mental illness or mental defect – in other words, it requires a causal link between the mental
illness or mental defect and the lack of mental abilities. In the above diagram of the test, the
cognitive and conative mental functions are indicated with arrows. B(i) is the cognitive part
of the test and B(ii), the conative part. The B(i) part of the test is seldom of great importance
in practice. The question is usually whether the B(ii) part of the test has been complied with.
499
As far as the conative part of the test is concerned, all that is required is that X must have
been incapable of acting in accordance with an appreciation of the wrongfulness of her
act or omission. Such lack of self-control may be the result of a gradual process of the
disintegration of the personality. Unlike the former test, which applied before 1977, the
lack of self-control need not be the result of a so-called "irresistible impulse"; the expression
"irresistible impulse" creates the impression of a conflict that flares up suddenly, sparking an
impulsive irresistible urge, whereas the disintegration of the conative function (self-control
and power of resistance) may be a gradual process.
500
112
This is well illustrated by the decision in Kavin 1978 (2) SA 731 (W). X shot and
killed his wife and two children and also attempted to kill a third child. He was
in financial difficulty and his apparent motive was to reunite his family, whom
he dearly loved, in heaven. The panel of psychiatrists concluded that although
it could not be said that X had been unable to appreciate the wrongfulness
of his conduct, he had been unable, on account of his mental illness, to act in
accordance with that appreciation at the time of the commission of the murders.
The evidence showed, however, that he had acted, not on an irresistable impulse,
but according to a definite plan: there was no question of an impulsive act. The
court held that the provisions of section 78(1) were wider than the 'irresistable
impulse test', that they were wide enough to cover a case such as this, where there
had been a gradual disintegration of the personality through mental illness, and
that X's defence of mental illness should therefore succeed.
Note that the accused in the Kavin case relied upon the defence of mental illness (s
78(1)) and not on the defence of non-pathological criminal incapacity. The psychiatric evidence in this case was that X suffered from a recognised mental illness, namely
reactive depression. Students often quote the Kavin case when referring to the defence
of non-pathological criminal incapacity. This is incorrect.
8.2.6
Onus of proof
Section 78(1A) of the Criminal Procedure Act 51 of 1977 provides that every person is presumed
not to suffer from a mental illness or mental defect until the contrary is proved on a balance of
probabilities. According to section 78(1B), the burden of proving insanity rests on the party raising the issue. This means that if the accused raises the defence of mental illness, the burden of
proving that she suffered from mental illness at the time of the commission of the unlawful act
rests upon her. If the state (prosecution) raises the issue, the burden of proof rests on the state.
501
8.2.7
Verdict
If the defence of mental illness is successful, the court must find X not guilty by reason of
mental illness or mental defect, as the case may be (s 78(6)). The court then has a discretion
(in terms of s 78(6)) to issue any one of the following orders:
502
1. that X be admitted to, and detained in, an institution stated in the order and treated
as if she were an involuntary mental-health-care user contemplated in section 37 of
the Mental Health Care Act 17 of 2002
2. that X be released subject to such conditions as the court considers appropriate
3. that X be released unconditionally
An example of a case in which the court may decide to release X unconditionally is a case in
which the evidence shows that, although X might have suffered from mental illness when
she committed the wrongful act, at the time of her trial she was, mentally, completely normal
again. There is another possible order that the court can make in certain serious cases:
503
1. If X has been charged with murder, culpable homicide, rape or another charge involving
serious violence, or
2. if the court considers it necessary in the public interest,
113
CRW2601/1
the court may direct that X be detained in a psychiatric hospital or a prison until a judge in
chambers (i.e. upon the strength of written statements or affidavits placed before the judge,
without evidence necessarily being led in open court) makes a decision in terms of section 47
of the Mental Health Care Act, 2002. The judge in chambers may order that the state patient
504
1. remain a state patient
2. be reclassified and dealt with as a voluntary, assisted or involuntary mental-health-care
user in terms of Chapter V of the above-mentioned Act
3. be discharged unconditionally
4. be discharged conditionally
8.2.8
Diminished responsibility or capacity
Section 78(7) provides that if the court finds that X, at the time of the commission of the act,
was criminally responsible for the act, but that her capacity to appreciate its wrongfulness
was diminished by reason of mental illness or mental defect, the court may take the fact of
such diminished responsibility into account when sentencing her.
505
This subsection confirms that the borderline between criminal capacity and criminal incapacity is
not an absolute one, but a question of degree. A person may suffer from a mental illness and yet
be able to appreciate the wrongfulness of her conduct and act in accordance with that appreciation. She will then, of course, not succeed in a defence of mental illness in terms of section 78(1).
506
If it appears that, despite her criminal capacity, she finds it more difficult than a normal person
to act in accordance with her appreciation of right and wrong, because her ability to resist
temptation is less than that of a normal person, she must be convicted of the crime (assuming
that the other requirements for liability are also met), but these psychological factors may
be taken into account and may then warrant the imposition of a less severe punishment.
507
8.2.9
Mental abnormality at the time of trial
In conclusion, we draw your attention to the difference between an allegation by X or her
legal representative
508
y that she was mentally abnormal at the time of the commission of the act
and
y that she is mentally abnormal at the time of her trial.
509
The discussion thus far has been devoted to mental abnormality at the time of the commission of the act. As regards the second type of allegation or investigation, we refer you to
the discussion in Criminal Law 155-156. You may read this on your own. A court cannot try a
mentally abnormal person. The procedure to be followed in such a case is discussed briefly in
that book. This is a procedural matter that is dealt with in the course on Criminal Procedure.
510
Mentally ill or merely confused?
X was charged with the theft of items from a supermarket. X’s defence was that she
had no intention of stealing, but had absent-mindedly placed the items in her shopping bag. She called medical evidence to establish that her absent-mindedness was
due to a combination of diabetes and depression. The judge ruled that this was a case
of mental illness. Do you agree with this judgment? Was X deprived of her powers of
reasoning, or was she merely momentarily confused, and thus lacked the necessary
intent for the offence?
114
8.3
YOUTH
511
(Criminal Law 156-158)
The Child Justice Act 75 of 2008 (which came into operation on 11 May 2009) deals with
youth as a factor that may exclude criminal capacity. Below is a very brief discussion
of the relevant provisions of the Act that you must study for the examination.
512
513
Part 2 of Chapter 2 of the Act provides for the new minimum age for criminal capacity.
514
Section 7 provides:
•
•
516
A child who commits an offence while under the age of 10 years does not have
criminal capacity and cannot be prosecuted for that offence (s 7(1)).
A child who is 10 years or older but under the age of 14 years and who commits
an offence is presumed to lack criminal capacity, unless the State proves that he
or she has criminal capacity (s 7(2)).
Section 11(1) of the Act provides:
•
The State must prove beyond reasonable doubt the capacity of a child who is 10
years or older but under the age of 14 to appreciate the difference between right and
wrong at the time of the commission of an alleged offence and to act in accordance
with that appreciation.
Activity 8.1
X, a 13-year-old girl, has no home. Every day, she stands on a corner of a street next to
the robot, begging for money. Her 18-year-old friend, Y, tells her that she is wasting her
time; she should rather resort to crime. Y also tells her that she can come and stay at her
home if she would be prepared to rob the drivers of motorcars of their cell phones. X
decides that she has had enough of begging. The next day, she smashes a car window at
the robot and grabs the car-owner's cell phone. She is caught and charged with robbery.
Critically evaluate X's chances of succeeding with the defence that she lacked criminal
capacity at the time of the commission of the offence.
Feedback
11
In terms of section 7(2) of the Child Justice Act 75 of 2008, a child who is ten years or older but
under the age of 14 is presumed to lack criminal capacity. However, this presumption can be
rebutted by the State. If the State can prove beyond reasonable doubt that X had the capacity
to appreciate the difference between right and wrong and could act in accordance with such
appreciation at the time of the commission of the robbery, she may be convicted of robbery.
115
CRW2601/1
GLOSSARY
518
lucidum intervallum
520
523
delirium tremens
519
lucid interval between periods of mental illness
the name of a recognised form of mental illness caused by the
chronic abuse and subsequent withdrawal of liquor
521
SUMMARY
Mental illness
1. See the above definition of the test to determine whether X may succeed with the defence
of mental illness.
2. The test to determine whether X may succeed with the defence of mental illness is set
out in a statutory provision, namely section 78(1) of the Criminal Procedure Act.
3. The abovementioned test comprises a pathological leg (which refers to a pathological
disease that X must have) and a psychological leg (which refers to X's cognitive and
conative functions).
4. The onus of proving the defence of mental illness rests on the party raising the defence.
5. If this defence succeeds, X is found not guilty, but the court may order that X be detained
in an institution or a psychiatric hospital or prison.
524
Youth
1. A child who commits an offence while under the age of ten years is irrebuttably presumed
to lack criminal capacity and cannot be prosecuted for an offence.
2. A child who is ten years or older but under the age of 14 years and who commits an
offence is presumed to lack criminal capacity, unless the State proves that he or she has
criminal capacity.
3. The State must prove beyond reasonable doubt the capacity of a child who is ten years
or older but under the age of 14 to appreciate the difference between right and wrong
at the time of the commission of an alleged offence and to act in accordance with that
appreciation.
525
further reading
For more information on mental illness and youth, read:
• Burchell Principles of Criminal Law (2016) 259–306.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 157–184.
Self-assessment
8
(1) What are the requirements for successful reliance on the defence of mental illness as set
out in section 78(1) of the Criminal Procedure Act? Discuss.
(2) Discuss the pathological leg of the test set out in section 78(1), that is, the requirement
that X must have suffered from a mental illness or mental defect.
116
(3) Discuss the psychological leg of the test set out in section 78(1), that is, the requirement
that there should have been a certain psychological incapability on the part of X.
(4) If X raises the defence of mental illness, on whom does the onus of proving that she suffered from mental illness rest?
(5) Discuss the possible orders that a court may issue if X succeeds with her defence of
mental illness.
(6) Discuss the minimum age for criminal capacity as provided for in the Child Justice Act
75 of 2008.
117
CRW2601/1
LEARNING UNIT 9
Intention I
Contents
Learning outcomes
9.1 Background
9.2 The two elements of intention
9.3 Definition of intention
9.4 The different forms of intention
9.4.1 Direct intention (dolus directus)
9.4.2 Indirect intention (dolus indirectus)
9.4.3 Dolus eventualis
9.5 The test for intention is subjective
9.6 Proof of intention – direct or indirect
9.7 Knowledge, as an element of intention, must cover all the requirements of crime
9.8 Intention directed at the circumstances included in the definitional elements
9.9 Intention with regard to unlawfulness
9.10 The distinction between motive and intention
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the requirement of intention by
– outlining the two elements of intention (inherent in all of its three forms)
– determining whether an accused has acted with
• direct intention
• indirect intention
• dolus eventualis
– distinguishing between motive and intention
526
118
9.1
BACKGROUND
In study unit 7, we pointed out that culpability rests on two pillars, namely criminal capacity
and a form of culpability. There are two forms of culpability, namely intention and negligence.
This may be represented in the following way:
527
The first pillar of the requirement of culpability, namely criminal capacity, has been discussed
in the previous two study units. In this and the next study unit, we will be discussing intention as a form of culpability. Negligence will be discussed in a later study unit.
528
9.2
THE TWO ELEMENTS OF INTENTION
Intention, in whatever form, consists of two elements, namely a cognitive and a conative
element.
529
530
The cognitive element consists in X's knowledge or awareness of
y the act (or the nature of the act)
y the existence of the definitional elements
y the unlawfulness of the act
The conative element consists in X's directing his will towards a certain act or result: X
decides to accomplish in practice what he has previously only pictured in his imagination.
This decision to act transforms what had, until then, merely been daydreaming, wishing or
hoping into intention.
531
532
In legal literature, intention is also known as dolus.
119
CRW2601/1
9.3
DEFINITION OF INTENTION
A person acts or causes a result intentionally if
• he wills the act or result
• in the knowledge
– of what he is doing (i.e. the act),
– that the act and circumstances surrounding it accord with the definitional elements,
– and
– that it is unlawful. Defined even more concisely, we can say that intention is to know
and to will an act or a result.
9.4
THE DIFFERENT FORMS OF INTENTION
(Criminal Law 159-168)
534
There are three forms of intention, namely direct intention (dolus directus), indirect intention
(dolus indirectus) and what is usually described as dolus eventualis. In a crime requiring intention, the intention requirement is satisfied if X entertained any one of these forms of intention.
In other words, there is no crime requiring intention in respect of which, for example, only
dolus directus is required, just as there is no crime requiring intention in respect of which, for
example, only dolus eventualis is required.
535
We will now take a closer look at these three forms of intention. In order to avoid making
the discussion too complicated, we will, for the moment, limit our discussion to intention in
materially defined crimes – that is to say, crimes that are defined in terms of the causing of a
certain result. (Murder is the most important crime in this category. Murder is the unlawful,
intentional causing of the death of another human being.) Later in this study unit, we will
briefly indicate how the description of the forms of intention in formally defined crimes (i.e.
crimes that are not defined in terms of the causing of a certain result, but merely in terms
of the commission of a certain act in certain circumstances) differs from the description of
intention in materially defined crimes.
536
9.4.1
Direct intention (dolus directus)
Study
Definition
A person acts with direct intention if the causing of the forbidden result is his aim or goal.
EXAMPLE
X wants to kill Y. X takes his revolver, presses it against Y's head and pulls the trigger. The shot
goes off and strikes Y in the head. Y dies instantly.
537
Note that the reason the person performs the act or causes the result is irrelevant.
In the example above, it therefore makes no difference whether X kills Y because he
hates him, or because Y is dying of a terminal illness and X wishes to relieve him of the
pain he is experiencing.
120
9.4.2
Indirect intention (dolus indirectus)
Definition
A person acts with indirect intention if the causing of the forbidden result is not his main
aim or goal, but he realises that, in achieving his main aim, his conduct will necessarily
cause the result in question.
EXAMPLES
1. X shoots at a target through a closed glass window. His main purpose is to hit the target,
but he realises that by doing this, he must necessarily also shatter the window. If he decides,
nevertheless, to act to attain his main purpose, he naturally also wills those consequences
that he realises must inevitably accompany his main purpose. If he shoots at the target
and shatters the window, he cannot claim that he never intended to shatter the window.
2. X's merchandise is insured and is stored in Y's building. To obtain the insurance money,
X sets the merchandise on fire, fully realising that the building itself must necessarily
catch alight. When this happens, the building burns down. X may be charged with arson
because he had the intention to set the building on fire – Kewelram 1922 AD 213.
539
This form of intention is present when a person visualises what he wants to achieve,
realises that in order to achieve it, something else will necessarily be caused, but
nevertheless proceeds with his conduct.
9.4.3
Dolus eventualis
Definition
A person acts with dolus eventualis if the causing of the forbidden result is not his main
aim, but
1. he subjectively foresees the possibility that in striving towards his main aim, his
conduct may cause the forbidden result and
2 he reconciles himself to this possibility.
The second part of the definition of dolus eventualis (which requires that X must have reconciled himself to the possibility) is not always expressed in the same way. Instead of requiring
that X must have reconciled himself to the possibility, it is often said that X must have been
reckless with regard to the performance of the act or the causing of the result. In practice,
however, the expressions "reconcile to" and "reckless towards" are used as synonyms.
540
Hint
Dolus eventualis is extremely important in criminal law, and you should be able to define it properly in the examination and in assignments. We often ask a question in the
examination in which it is necessary for you to define dolus eventualis. When reading your
definition of dolus eventualis in your examination scripts, we are especially on the lookout
for the words that have been printed in bold in the definition here, namely foresees,
possibility and reconciles.
121
CRW2601/1
Dolus eventualis. A variation of the well-known story of the legendary Swiss patriot Wilhelm Tell. In order
to prove how well he can shoot with his bow and arrow, X (Wilhelm Tell) places an apple on the head of
his son, Y, and shoots an arrow at the apple. He does not wish to kill Y, whom he dearly loves. He wants the
arrow to pierce the apple on Y's head. However, assume that the following happens: X foresees the possibility that, in attempting to shoot the apple, the arrow might strike, not the apple, but Y instead, killing Y.
He aims at the apple, but the arrow strikes Y, killing him. If X is charged with having murdered Y, can he succeed with a defence that he never intended to kill Y, since he merely wanted the arrow to strike the apple?
Assuming that it is proven that he did in fact foresaw the possibility of the arrow striking Y instead of the
apple, and that he had reconciled himself to this possibility, his defence will not succeed. In the eyes of the
law X had the intention to kill Y. This form of intention is known as dolus eventualis.
EXAMPLES of dolus eventualis:
541
1. X disconnects sections of a railway track in order to derail a train. He does not desire to
kill other people, because his immediate goal is to commit sabotage, and, in this way,
to express the resentment he feels towards the state. He is nevertheless aware of the
possibility that people may die if the train is derailed, and he reconciles himself to this
possibility. If he succeeds in derailing the train, and people die, it is futile for him to allege
that he did not intend to kill people (facts analogous to those in Jolly 1923 AD 176).
2. X wants to burn down a building. He foresees the possibility that Y may be inside the building,
but nevertheless proceeds with his plan, and sets fire to the building. Y is indeed inside
at the time, and dies in the flames. In the eyes of the law, X intentionally caused Y's death.
3. X and Z undertake a joint robbery. X knows that Z is armed with a loaded revolver. He also
knows that Z may use this weapon if the people whom they want to rob offer resistance.
They go to a shop; which Z enters while X stands watch outside. The proprietor of the
shop (Y) resists Z, causing Z to shoot and kill Y. In the eyes of the law, not only Z, but also
X had the intention to kill, and is guilty of murder (Nsele 1955 (2) SA 145 (A)).
Should a court consider whether X acted with dolus eventualis and decide that this was not
the case, the decision will normally be based on the consideration that X had not foreseen
542
122
the possibility. However, it is quite possible for the court to conclude that, although X
had foreseen the possibility, he had not reconciled himself to it.
543
The following is an EXAMPLE where a court may reach this conclusion:
X is shooting game. He knows that behind the game, between the trees, there is a hut
that is inhabited, and that the inhabitants might be outside in the area between the
trees. He thus foresees the possibility that if he shoots and misses the buck he is aiming at; the bullet may hit one of the inhabitants who is outside the hut. However, he
decides that this will not happen, since he is a very good marksman and, in the past, he
has shot similar buck from the same distance without missing. He pulls the trigger. The
shot misses the buck, and hits a person, Y, who is standing outside the hut between
the trees, killing him. In this example, X did not act with dolus eventualis, since the second part of the test, which deals with "reconciling himself to the possibility", has not
been complied with. However, in this example, X would in all probability be guilty of
culpable homicide, since he acted negligently in shooting after he had become aware
of the possibility that there might be people behind the buck.
In Humphreys 2013 (2) SACR 1 (SCA), the court held that the accused – although he had foreseen
the possibility of harm – did not reconcile himself to the possible consequences of his actions.
A minibus taxi-driver, Humphreys, transported children to school. He drove over a railway
crossing and was hit by a train, resulting in ten of the 14 children in the minibus being killed,
while the others were seriously injured. Humphreys himself was also injured. He was charged
with ten counts of murder and four counts of attempted murder. At the trial, evidence was led
that he had crossed the railway by avoiding the barrier created by the boom, and ignoring the
flashing warning lights. Evidence that the accused had performed the same manoeuvre on
two previous occasions, and had successfully avoided the oncoming train on those occasions,
was also accepted by the trial court (para 61). He was convicted on all counts, and sentenced to
20 years' imprisonment. He appealed against his conviction and the issue before the Supreme
Court of Appeal was whether he had intention in the form of dolus eventualis.
544
The court set out the test for dolus eventualis as consisting of two components: (a) did the appellant
subjectively foresee the possibility of the death of his passengers ensuing from his conduct (the
cognitive component); and (b) did he reconcile himself to that possibility (the conative component) (para 12)? The court explained the second component as meaning that the perpetrator had
been reckless in "consenting" to the consequences, and had taken it "into the bargain" (para 22).
545
The court found that although the appellant did foresee the consequences, he did not comply
with the second requirement, namely the conative component of the test, for the following reasons: If the appellant had taken the death of his passengers into the bargain when he
proceeded to act, it would unavoidably require the further necessary inference that he also
took his own death into the bargain, in other words, that he would have been indifferent to
living or dying. The court found that the appellant did not reconcile himself to his own death
and, therefore, also did not reconcile himself to the death of his passengers (para 18). The
second reason that the court advanced for its finding was the evidence that the appellant
had successfully performed the same manoeuvre in virtually the same circumstances on at
least two previous occasions, which probably led him to the "misplaced sense of confidence
that he could safely repeat the same exercise" (para 19). The convictions of murder and attempted murder were set aside, and the appellant was found guilty only of culpable homicide
in respect of the children killed, since there is no crime such as negligent attempted murder.
546
123
CRW2601/1
The approach followed in Humphreys was applied in Ndlanzi 2014 (2) SACR 256 (SCA). X was
driving a taxi during peak hour in Johannesburg and collided with a newspaper stall on the
pavement, also driving into a stop sign. Unbeknown to X, he had knocked over a pedestrian,
Y, who was walking on the pavement. X then reversed to enable him to get back on the
road, and in doing so, drove over Y, causing his death. X was charged with murder and was
convicted in the regional as well as in the High Court. In an appeal to the Supreme Court
of Appeal, it was found that although X had foreseen the possibility that by driving on the
pavement he could cause the death of pedestrians, he did not reconcile himself with the
possibility. The court explained that on the evidence, X believed that he would be able to
avoid colliding with pedestrians by turning to the right, and back on the road (para [39]). In
the court's view, the second element of dolus eventualis was therefore not established on
the evidence because X had taken a risk "which he thought would not materialise" (para [39]
relying on Humphreys para 10d). The murder conviction was therefore set aside, and X was
convicted of culpable homicide.
547
The courts’ reluctance to convict drivers of motor vehicles of murder after the ruling in Humphreys is illustrated also in Maarohanye 2015 (1) SACR 337 (GJ). X and Y, while under the influence of drugs, lost control of their cars while racing against each other on a public road and
in a built-up area, causing the death of four pedestrians and maiming two other pedestrians.
Their convictions of murder and attempted murder based on intention in the form of dolus
eventualis were set aside on appeal. The court of appeal held that the trial court’s finding on
the evidence that “the effect of the drugs had induced a sense of euphoria” which led them
to believe that they would not cause any collision, was indicative rather of the absence of
dolus eventualis (paras [22] and [23]). The court found that because of the intake of drugs, X
and Y had not foreseen the possibility that they may cause the death or injury of pedestrians
or reconciled themselves with such eventualities (para [24]). The conviction of murder was
set aside, and X and Y found guilty of culpable homicide only.
548
Hint
A common mistake students make is to say that intention was present because X "ought
to have foreseen or must have foreseen the possibility of a consequence ensuing".
Remember that the correct statement is: "Dolus eventualis was present because X, in fact,
(actually) foresaw the possibility of a result ensuing."
9.5
THE TEST FOR INTENTION IS SUBJECTIVE
549
(Criminal Law 167-168)
The test in respect of intention is purely subjective. The court must determine what the
state of mind of that particular person – the accused (X) – was when he committed the act.
When determining whether X had intention, the question is never whether he should have
foreseen the result, but whether he actually foresaw it. To say that X "should have foreseen"
says nothing about what X actually thought or foresaw; it is simply comparing his state of
mind or conduct with another's, namely the fictitious reasonable person. To do this is to apply
the test in respect of negligence, which is objective. The dangers of applying an objective
assessment for the presence or alleged absence of intention (as it relates to unlawfulness)
are highlighted in the criticism of the SCA’s approach in the Pistorius case – see SG 10.6.1.
In deciding whether X had intent, the question is always: How did X perceive the situation,
what knowledge did he have, and did he will the consequence or foresee it as a possibility?
550
124
9.6
PROOF OF INTENTION – DIRECT OR INDIRECT
How is intention proved in a court? Sometimes there may be direct evidence of intention:
if, in a confession, in the course of being questioned at the stage of explanation of plea or
in his own evidence before the court, X admits that he acted intentionally, and if the court
believes him, there is obviously no problem. However, in most cases, X does not make such
an admission. How can the judge or magistrate then determine whether he acted with intent?
X is, after all, the only person who knows what his state of mind was at the crucial moment
when he committed the act.
551
There is no rule to the effect that a court may find that X acted with intent only if he (X)
admitted that he had intent (in other words, if there is direct proof of intent). It is, after all,
a well-known fact that many accused who did actually have intent subsequently deny in
court that they acted intentionally. A court may base a finding that X acted intentionally on
indirect proof of intent. This means that the court infers the intent from evidence relating to
X's outward conduct at the time of the commission of his act, as well as the circumstances
surrounding the events.
552
Consider the following simple EXAMPLE.
553
Eyewitnesses of the events tell the court that, with a knife in his hand, X walked up to
Y, who was sitting on a chair, pressed the knife with a swift stabbing motion into Y's
chest, and that Y died moments later. The doctor who conducted the post mortem examination tells the court that whoever administered the stab wound must have used
much force because the wound was deep, and the stab even broke one of Y's ribs. It is
also clear from the evidence of the eyewitnesses that Y had not provoked or angered
X shortly before receiving the stab wound, that X had not been intoxicated, and that
there cannot be any suggestion that X acted in private defence. To this may be added
evidence that X had harboured a grudge against Y because Y had committed adultery
with X's wife a few days before the event. Assuming that the court accepts this evidence,
the court will, in all probability, infer from all this that X killed Y intentionally. Contrast
the above set of facts with one in which, according to the evidence, the wound was
not deep, Y had provoked X before the stab wound was administered, and X was intoxicated, and had told the bystanders (eyewitnesses) shortly before the event that he
had only wanted to frighten Y. In such a case, the court will probably find that it cannot
infer beyond reasonable doubt that X intended to kill Y.
When a court is called upon to decide, by means of inference from the circumstances, whether
X acted intentionally, it must guard against subtly applying an objective instead of a subjective
test to determine intent. It is dangerous for a court to argue as follows: "Any normal person
who commits the act that X committed would know that it would result in the death of the
victim; therefore, X acted intentionally." Although the court (judge or magistrate) is free to
apply general knowledge of human behaviour and of the motivation of such behaviour, it
must guard against exclusively considering what a ''normal", "ordinary" or "reasonable" person
would have thought or felt in any given circumstances.
554
The court must go further than this: it must consider all the circumstances of the case (such
as the possibility of a previous quarrel between the parties), as well as all of X's individual
characteristics that the evidence may have brought to light and which may have a bearing
on his state of mind (such as his age, degree of intoxication, his possible irascibility, possible
lack of education or low degree of intelligence). The court must then, to the best of its ability,
555
125
CRW2601/1
try to place itself in X's position at the time of the commission of the act complained of,
and then try to ascertain what his (X's) state of mind was at that moment – that is, whether
he appreciated or foresaw the possibility that his act could result in Y's death (Sigwahla 1967
(4) SA 566 (A) 570).
9.7
KNOWLEDGE, AS AN ELEMENT OF INTENTION, MUST
COVER ALL THE REQUIREMENTS OF CRIME
We have already pointed out that intention consists of two elements, namely knowledge
and will. It is now necessary to explain the knowledge requirement, or the cognitive element,
in more detail.
556
In order to have intention, X's knowledge must refer to all the elements of the offence, except
the requirement of culpability. Such knowledge must refer to
557
1. the act,
2. the circumstances included in the definitional elements, and
3. the unlawfulness of the act.
X must be aware of all these factors. Let's now apply this rule to a specific crime, namely common-law perjury. The form of culpability required for this crime is intention. The elements
of this crime are the following:
558
1.
2.
3.
4.
5.
6.
making a declaration
that is false
under oath or a form equivalent to an oath
in the course of legal proceedings
unlawfully and
intentionally
If we now apply the rule currently under discussion to this crime, it means the following: The
act and definitional elements are contained in the elements numbered (1) to (4) above. An
application of the present rule means, firstly, that X must know (be aware) that he is making
a declaration (element no (1)). Next, he must know that this declaration is false (element no
(2)). Furthermore, he must know that he is making the declaration under oath (element (3)).
If he is not aware of this (where, for example, he thinks that he is merely talking informally to
another person), a material component of the intention requirement for this crime is lacking,
and X cannot be convicted of the crime.
559
Intention in respect of element number (4) of the crime (see list above) means that X must
know that he is making the statement in the course of legal proceedings. If he is unaware of
this (where, for example, he thinks that he is making the statement merely in the course of
an administrative process), a material component of the intention required for this crime is,
likewise, lacking. Intention in respect of element number (5) of the crime means that X must
know that his conduct is unlawful, that is, not covered by a ground of justification (such as
necessity, which includes compulsion). It is not necessary to enquire into intention relating
to element number (6) of the crime, as this element is the culpability element itself, and an
"intention in respect of an intention" is obviously nonsensical. We may illustrate the rule that
intention must relate to all the elements of the crime graphically as follows:
560
126
561
9.8
INTENTION DIRECTED AT THE CIRCUMSTANCES
INCLUDED IN THE DEFINITIONAL ELEMENTS
By saying that intention must be directed at the circumstances included in the definitional
elements, we mean that X must have knowledge of these circumstances. This principle
applies particularly to formally defined crimes, because in these crimes the question is not
whether X's act caused a certain result, but merely whether the act took place in certain
circumstances. The following are EXAMPLES of the application of this principle:
562
1. In the crime of unlawful possession of drugs, the object that X possesses must be a drug.
X must, accordingly, be aware of the fact that what he possesses is a drug. If X is under
the impression that the bottle Z has asked him to keep contains talcum powder, whereas
in fact it contains a drug, X lacks intention.
2. The most common form of theft is the removal of another's property. This is a form of
theft where the thing that is stolen must belong to another. X must therefore know that
the thing he is appropriating belongs to another, and must not, for instance, labour under
the mistaken impression that it is his own.
When we say that X must have knowledge of a circumstance or a fact, it means the following: X need not be convinced that the said circumstance exists (e.g. that the object he
possesses is a drug, or that the thing he is handling belongs to another). In the eyes of the
law, X will also be regarded as having the knowledge (i.e. the intention with regard to such
circumstance or fact) if he merely foresees the possibility that the circumstance or fact may
exist, and reconciles himself to that possibility. In such a case, his intention with regard to
the circumstance exists in the form of dolus eventualis.
563
It follows that the definitions of the different forms of intention in formally defined crimes
(i.e. crimes that do not deal with the causing of a result) differ only slightly from the definitions of the forms of intention in materially defined crimes. Read study unit 4.3.1 again. The
only difference is that all references to "causing a result" are replaced by the words "commit
an act" and, where applicable, "circumstances exist".
564
9.9
INTENTION WITH REGARD TO UNLAWFULNESS
As far as the intention with regard to unlawfulness is concerned, the principle that has been
explained above also applies here. Knowledge of the unlawfulness of an act is knowledge of
a fact, and is present not only when X actually knows (or is convinced) that the act is unlawful,
565
127
CRW2601/1
but also when he merely foresees the possibility that it may be unlawful and reconciles himself
to this. His intention with regard to unlawfulness is then present in the form of dolus eventualis.
When we say that knowledge of unlawfulness is required for X to have intention, it means
that X must be aware that his conduct is not covered by a ground of justification, and that
the type of conduct he is committing is prohibited by law as a crime. This will be discussed
in the next study unit.
566
9.10 THE DISTINCTION BETWEEN MOTIVE AND INTENTION
567
(Criminal Law 169)
Intention must not be confused with the motive for committing the crime. In determining
whether X acted with intention, the motive behind the act is immaterial (Peverett 1940 AD 213).
For this reason, X is guilty of theft even though he steals from the rich in order to give to the
poor. A good motive may, at most, have an influence on the degree of punishment imposed.
If it is clear that X acted intentionally, the fact that his motive was laudable or that we might
sympathise with him cannot serve to exclude the existence of intention, such as where he
administers a fatal drug to his ailing father to release him from a long, painful and incurable
illness (Hartmann 1975 (3) SA 532 (C)). Furthermore, if X had the intention to commit an unlawful act or to cause an unlawful result, the fact that he did not desire to commit the act or to
cause the result in no way affects the existence of his intention (Hibbert 1979 (4) SA 717 (D) 722).
568
GLOSSARY
569
dolus
dolus directus
571
573
dolus indirectus
dolus eventualis
575
570
intention
572
direct intention
indirect intention
574
a form of intention in which X foresees a possibility and reconciles
himself to such possibility
576
SUMMARY
578
1. Culpability = criminal capacity + either intention or negligence.
2. A person acts or causes a result intentionally if he wills the act or result, while aware
that the act and the circumstances in which it takes place accord with the definitional
elements and that the act is unlawful.
3. There are three forms of intention, namely direct intention (dolus directus), indirect intention
(dolus indirectus) and dolus eventualis. A definition of each of these forms of intention
was given above. In a crime requiring intention, the intention requirement is satisfied if
X entertained any one of these forms of intention.
4. Intention, in whatever form, consists of two elements, namely a cognitive and a conative
element. The cognitive element refers to X's knowledge, while the conative element
refers to his will.
128
5. As far as the element of knowledge in intention is concerned, X must have knowledge
of (a) the act, (b) the circumstances set out in the definitional elements, and (c) the
unlawfulness of the conduct.
6. The test for determining whether X had intention is subjective. This means that the court
must ask itself what X, in fact, thought or willed at the critical moment. In determining
whether X had intention, the question is never "what X should have known or thought",
or "what X ought to have known or thought", or "what a reasonable person in the same
circumstances would have known or thought".
Further reading
For more information on intention, read:
• Burchell Principles of Criminal Law (2016) 348–379.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 203–216.
9
Self-assessment
(1)
(2)
(3)
(4)
(5)
Define intention.
Name the two elements of intention and explain briefly what each entails.
Name the three forms of intention.
Define each of the three forms of intention and illustrate each by means of an example.
Discuss the Humphreys decision and the application of the two components of dolus
eventualis in this case, as well as in the cases of Ndlanzi and Maarohanye.
(6) Why is it said that the test for intention is subjective? Explain briefly.
(7) Discuss the following statement: "Intention must be directed at all the requirements of
the offence."
(8) Distinguish between intention and motive. Is X's motive relevant where it has to be ascertained whether he had intention?
129
CRW2601/1
LEARNING UNIT 10
Intention II: mistake
Contents
Learning outcomes
10.1 Mistake nullifies intention
10.2 Mistake need not be reasonable
10.3 Mistake must be material
10.4 Mistake relating to the chain of causation
10.5 The going astray of the blow (aberratio ictus) does not constitute a mistake
10.5.1 Description of concept
10.5.2 Two opposite approaches
10.5.3 Concrete-figure approach to be preferred
10.5.4 Judging aberratio ictus situations
10.5.5 Aberratio ictus and error in objecto - examples of factual situations
10.6 Mistake relating to unlawfulness
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• further demonstrate your understanding of the requirement of intention by expressing an informed opinion on whether an accused has made a material mistake (be it a
mistake relating to the object, the chain of causation, the unlawfulness of the act or
the definitional elements) that excludes intention
• demonstrate your understanding of aberratio ictus by
– identifying an instance of aberratio ictus
– applying the concrete-figure approach, as well as the transferred culpability approach, to the facts in such a case
– distinguishing between instances of aberratio ictus and instances of error in objecto
130
579
10.1 MISTAKE NULLIFIES INTENTION
(Criminal Law 170)
580
581
In the previous study unit, we explained that intention must relate to
1. the act,
2. all the circumstances set out in the definitional elements, and
3. the unlawfulness of the conduct.
X must be aware of all the factors mentioned under (1), (2) and (3) above. If she is unaware of any of them, it cannot be said that she intended to commit the crime. If such
knowledge or awareness is absent, it is said that there is a "mistake" or "error" on X's part:
she imagined the facts to be different from what they, in fact, were; in other words, mistake
excludes or nullifies the existence of intention.
582
583
The following are two EXAMPLES of mistake relating to the act (or the nature of the act):
1. Within the context of the crime of malicious injury to property, X is under the impression
that she is fixing the engine of somebody else's motorcar that has developed problems,
whereas what she is actually doing to the engine amounts to causing "injury" to it.
2. Within the context of the crime of bigamy, X thinks that she is partaking in her friend’s
marriage ceremony in a church, whereas the service in which she is partaking is, in fact,
her marriage ceremony.
The following are two EXAMPLES of mistake relating to circumstances set out in the definitional elements:
584
1. X is hunting game at dusk. She sees a figure, which she takes to be a buck, and shoots at
it. It turns out that she has killed a human being. She will not be guilty of murder, since
she did not intend to kill a human being.
2. (Within the context of the statutory crime of unlawfully possessing drugs) X thinks that
the container of powder that she received from a friend is snuff, to be used by her as a
cure for a certain ailment, whereas, in fact, it contains matter listed in the statute as a
drug that may not be possessed.
131
CRW2601/1
The following are two EXAMPLES of mistake relating to unlawfulness:
585
1. X thinks that she is in a situation that warrants private defence because Y is threatening
her with a revolver, but Y is merely joking and the "revolver" is, in fact, a toy.
2. X believes that there is no legislation or legal rule that prohibits her from possessing a
rhinoceros’ horn, whereas there is, in fact, such legislation. (We will discuss mistake relating
to the unlawfulness of the conduct in more detail below.)
10.2 MISTAKE NEED NOT BE REASONABLE
(Criminal Law 170-171)
586
Whether there really was a mistake that excludes intention is a question of fact. What must be
determined is X's true state of mind, and conception of the relevant events and circumstances.
The question is not whether a reasonable person in X's position would have made a mistake.
The test in respect of intention is subjective, and if we were to compare X's state of mind
and view of the circumstances with those of a reasonable person in the same circumstances,
we would be applying an objective test in respect of intention, which is not warranted. To
say that mistake can exclude intention only if it is reasonable is the same as saying that it is
essential for a reasonable person to have made a mistake under those circumstances.
587
Now that a subjective test in respect of intention has been accepted, there is no longer any
room for an objective criterion such as reasonableness (Sam 1980 (4) SA 289 (T)). Because the
test is subjective, X's personal characteristics, her superstitiousness, degree of intelligence,
background and character may be taken into account in determining whether she had the
required intention, or whether the intention was excluded because of mistake. The reasonableness of the mistake, at most, constitutes a factor that, from an evidential point of view,
tends to indicate that there is indeed a mistake; however, it should not be forgotten that in
exceptional circumstances, it is possible to make an unreasonable mistake.
588
10.3 MISTAKE MUST BE MATERIAL
(Criminal Law 171)
589
Not every wrong impression of facts qualifies as a mistake; thus affording X a defence. Sometimes X may be mistaken about a fact or circumstance, and yet not be allowed to rely on her
mistake as a defence. A mistake can exclude intention (and, therefore, liability) only if it is a
mistake concerning an element or requirement of the crime other than the culpability
requirement itself. These requirements are
590
1. the requirement of an act,
2. a requirement contained in the definitional elements, or
3. the unlawfulness requirement.
To use any yardstick other than the above-mentioned one in determining whether a mistake
may be relied on as a defence is misleading. This must be borne in mind, especially where
X is mistaken about the object of her act. Such a mistake is known in legal literature as error
in objecto. Error in objecto is not the description of a legal rule; it merely describes a certain
kind of factual situation. It is therefore incorrect to assume that as soon as a certain set of
facts amounts to an error in objecto, only one conclusion (that X is guilty or not guilty) may
legally be drawn.
591
132
Whether error in objecto excludes intention and is, therefore, a defence depends upon the
definitional elements of the particular crime. Murder is the unlawful intentional causing of the
death of another person. The object of the murder is, therefore, a human being. If X thinks
that she is shooting a buck, when she is actually shooting a human being, she is mistaken
about the object of her act (error in objecto), and this mistake excludes the intention to murder.
Her mistake excludes intention because it is a mistake concerning the definitional elements
of the crime in question (murder).
592
Note that although, in the above example, X cannot be convicted of murder, it does not necessarily follow that she will go free. Although her mistake excludes intention, the circumstances
may be such that she was negligent in shooting at a fellow human being. She would have
acted negligently if a reasonable person in the same circumstances would have foreseen that
the figure she was aiming at was not a buck, but a human being. (This will become clearer
from the discussion below of the test for negligence.) If she had killed a person negligently,
she would be guilty of culpable homicide.
593
The difference between a material and a non-material mistake.
594
The illustration on the left depicts a case of a material mistake. A mistake is material if it relates to the act,
a circumstance or result contained in the definitional elements or the unlawfulness. Here we are dealing
with a mistake relating to a circumstance or requirement contained in the definitional elements of the
crime with which X is charged, namely murder. X wants to shoot a baboon. He thinks that the figure he
sees in the semi-darkness is a baboon, and shoots. It transpires that the figure is not that of a baboon, but
of another human being, and that X shot and killed that other human being. X cannot be convicted of
murder because he did not, in the eyes of the law, have the intention to murder: he was unaware of the fact
that the object at which his act was aimed was another human being. (According to the definitional elements of the crime of murder, the object that the perpetrator kills must be another human being.)
The illustration on the right depicts a case of a non-material mistake, that is, a mistake that does not
relate to the act, a circumstance or result contained in the definitional elements of the crime or the unlawfulness. X wants to shoot and kill his enemy, John. In the semi-darkness, he sees a figure that he believes
133
CRW2601/1
to be John, and shoots at the figure, intending to kill him. It transpires that the figure at which he shot was
not John, but Peter, and that he shot and killed Peter. Here X is indeed guilty of murder. He cannot succeed
with a defence by alleging that he wanted to kill John instead of Peter. Although he was mistaken about
the identity of his victim, he knew very well that the object of his action was another human being; in other
words, his intention (knowledge) related to a requirement contained in the definitional elements.
What would the position be if X intended to shoot Z, but it subsequently transpired that she mistook her
victim's identity and, in fact, shot Y? Here her mistake did not relate to whether she was killing a human being, but to the identity of the human being. Murder is committed whenever a person unlawfully and intentionally kills a human being, and not merely when a person kills the particular human being she intended
killing. For this reason, X is guilty of murder in this case. Her mistake about the object of her act (error in
objecto) will not exclude her intention. Her mistake was not material in this case.
10.4 MISTAKE RELATING TO THE CHAIN OF CAUSATION
(Criminal Law 172-174; Reader 105-113)
595
This form of mistake can occur only in the context of materially defined crimes, such as
murder. X believes that the result will be brought about in a certain manner; the result does
ensue, but in a manner that differs from that foreseen by X. The following are EXAMPLES of
this type of mistake:
596
y X sets about killing Y by pushing her off a bridge into a river, expecting that she will drown;
in fact, Y is killed because, in her fall, she hits one of the pillars of the bridge.
y X shoots at Y, but misses; Y, who suffers from a weak heart and nerves, dies of shock.
Before 1989, both writers on criminal law and the courts assumed that this form of mistake
did not exclude intention. However, in 1989, in Goosen 1989 (4) SA 1013 (A), the Appellate
Division analysed this form of mistake, and held that a mistake relating to the causal chain of
events may exclude intention, provided the actual causal chain of events differed materially
from that envisaged by X. In other words, in materially defined crimes (i.e. "result crimes"),
X's intention must, according to the court, be directed at bringing about the result in substantially the same manner as that in which it actually was caused.
597
In this case, X – together with two other persons, Z and W – had taken part in the joint robbery of Y. The shot that actually killed Y had been fired by Z, but the court, after examining
the evidence, found that at the crucial moment when Z had fired the shot, he (Z) had acted
involuntarily because he had been frightened by an approaching vehicle. The question was
whether X, who had taken part in the joint venture by driving the gang in a car to Y, could, on
the ground of dolus eventualis, be convicted of murdering Y because of the shot fired by the
co-member of the gang, Z. X had known that Z had a firearm, and had foreseen that Z could
fire at Y, but had not foreseen that Y would die as a result of a bullet being fired involuntarily
by Z. In a unanimous judgment delivered by Van Heerden JA, the Appellate Division found
that there had been a substantial difference between the actual and the foreseen manner in which the death was caused, that X had not foreseen that the death could be caused
in this way, and that X's misconception or mistake in this regard negatived the intention to
murder. The court did not want to amplify the rule it laid down by specifying what criterion
should be applied to distinguish between "material" (i.e. "substantial") and "immaterial" differences in the manner in which death is caused.
598
(To understand this judgment properly, it is necessary to have a knowledge of common purpose,
which will be discussed when dealing with participation in study unit 14 of this study guide.)
599
134
Activity 10.1
A thief plans to rob a café owner. She takes a firearm with her, and although she sincerely
hopes that there will be no resistance, she does foresee a reasonable possibility that she
will have to shoot at her victim and, in so doing, could cause the latter's death. Hoping
that the owner of the café would readily hand over the money, she keeps the weapon in
her jacket pocket when she confronts her and demands money. At that moment her feet
slip from under her and she falls to the floor. The loaded weapon goes off. Contrary to all
expectations, the café owner is fatally wounded. X is charged with murder. Do you think
that she can succeed with a defence of mistake regarding the causal chain of events?
Feedback
12
If you have already studied the Goosen case, you ought to recognise these facts. In the
judgment in Goosen, the court used these facts as an illustration of substantial difference
between the actual and the foreseen manner of death. X may, accordingly, succeed with
the defence of mistake regarding the causal chain of events.
In Lungile 1999 (2) SACR 597 (A), three robbers, among them X, acting with a common
purpose, robbed a shop. A policeman, Z, tried to thwart the robbery. In a wild shoot-out
between Z and the robbers, which took place in the shop, a shop assistant, Y, was killed. On
a charge of murder, X relied, inter alia, on the defence of absence of a causal link between
his conduct and Y's death. According to him, his conduct was not the cause of Y's death
because the shot fired by Z on Y, killing Y, constituted a novus actus interveniens. The court
rejected this argument, holding that Z's act was not an abnormal, independent occurrence.
However, the question arises whether X could not perhaps have relied on the defence that
he was mistaken as to the causal course of events: could he not have raised the defence that
he was under the impression that Y would die as a result of a shot fired by him or one of his
associates, whereas Y was, in fact, killed by a shot fired by Z? The court convicted X of murder
without considering such a possible argument. We submit that the court's conclusion is
correct, on the following ground: even if X had alleged that he was mistaken as to the chain
of causation, such a defence should not have succeeded because there was not a substantial
difference between the foreseen and the actual course of events.
The correctness of the decision in Goosen is controversial, and the courts have been
reluctant to apply it. As a matter of interest: critics of the judgment in Goosen might rely
on the judgment in Lungile as support for their argument that a mistake as to the causal
chain of events is not – or ought not to be – a defence, or is, in any event, not regarded by
the courts as a defence.
Read
Read the aforementioned decision in your Reader: Lungile 1999 (2) SACR
597 (A).
135
CRW2601/1
10.5 THE GOING ASTRAY OF THE BLOW (ABERRATIO ICTUS)
DOES NOT CONSTITUTE A MISTAKE
600
(Criminal Law 175-178; Reader 100-104)
10.5.1 Description of concept
Aberratio ictus means the going astray or missing of the blow. It is not a form of mistake.
X has pictured what she is aiming at correctly, but through lack of skill, clumsiness or other
factors, she misses her target and the blow or shot strikes somebody or something else.
601
Please note the spelling of the word aberratio. Students often spell it incorrectly in the
examination. You spell it with one b but two r’s.)
602
EXAMPLES of aberratio ictus are the following:
1. Intending to shoot and kill her enemy, Y, X fires a shot at Y. The bullet strikes a round iron
pole, ricochets and strikes Z, who is a few paces away, killing her. (See illustration above.)
2. X wishes to kill her enemy, Y, by throwing a javelin at her. She throws a javelin at Y, but
just after the javelin has left her hand, Z unexpectedly runs out from behind a bush and
in front of Y and the javelin strikes Z, killing her.
3. Intending to kill her enemy, Y, X places a poisoned apple at a spot where she expects Y
to pass, hoping that Y will pick up the apple and eat it. However, Z, not Y, passes the spot,
picks up the apple, eats it and dies.
136
What all these examples have in common is that the blow aimed at Y went awry and struck
somebody else, namely Z. In order to decide whether, in these types of situations, X has committed murder, it is necessary to ascertain whether X can be said to have had intention in
respect of Z's death.
603
10.5.2 Two opposite approaches
A perusal of this subject in the legal literature generally reveals two opposite approaches
regarding the legal conclusions to be drawn.
604
a. The transferred culpability approach
According to the one approach, the question whether X, in an aberratio ictus situation, had the
intention to kill Z should be answered as follows: X wished to kill a person. Murder consists in the
unlawful, intentional causing of the death of a person. Through her conduct, X actually caused
the death of a person. The fact that the actual victim of X's conduct proved to be somebody
different from the particular person that X wished to kill ought not to afford X any defence.
In the eyes of the law, X intended to kill Z, because X's intention to kill Y is transferred to her
killing of Z, even though X might perhaps not even have foreseen that Z might be struck by
the blow. The Anglo-American legal system, which for the most part follows this approach,
reaches this conclusion through an application of what is called the "doctrine of transferred
malice". X's intent in respect of Y's killing is transferred to her killing of Z.
605
b. The concrete-figure approach
There is, however, an alternative approach to the matter. Those who support this approach
argue as follows: We can accept that X intended to kill Z only if it can be proved that X knew
that her blow could strike Z, or if she had foreseen that her blow might strike Z, and had
reconciled herself to this possibility. In other words, we merely apply the ordinary principles
relating to intention and, more particularly, dolus eventualis. If X had not foreseen that her
blow might strike Z, she lacked intention in respect of Z's death, and cannot be convicted of
murder. X's intention to kill Y cannot serve as a substitute for the intention to kill Z. In order
to determine whether X had the intention to kill the person who, or figure that was actually
struck by the blow, the question is not simply whether she had the intention to kill a person,
but whether she had the intention to kill that particular (concrete) figure that was actually
struck by the blow. Only if this last-mentioned question is answered in the affirmative can
we assume that X had intention in respect of Z. According to this approach, what is crucial is
not an abstract "intention to kill a person", but a concrete "intention to kill the actual victim".
606
10.5.3 Concrete-figure approach to be preferred
Which one of these two approaches should you follow? To a certain extent, support for the
transferred culpability approach can be found in South African case law before 1950 (e.g. Koza
1949 (4) SA 555 (A) and Kuzwayo 1949 (3) SA 761 (A)), but the weight of authority in the case
law after this date supports the concrete-figure approach. In our opinion, this last-mentioned
approach is also the most preferable, for the following two important reasons:
607
1. Since about 1950, our courts have clearly adopted a subjective test to determine intention.
The concrete-figure approach is more in accordance with the subjective test for intention
than the transferred culpability approach. For example: if, in example (2) above, X had never
even foreseen that after hurling the javelin, an outsider, Z, might run into its trajectory
and be hit by the javelin, it is, to say the least, difficult to argue that X had the intention
to kill Z. There is much to be said for the argument that if X had not known that Z might
137
CRW2601/1
run into the path of the javelin, and somebody else had warned her beforehand that this
might happen, she might rather have decided not to proceed with hurling the javelin.
If X had not known or foreseen that Z might run into the path of the javelin, the mere
existence of an abstract intention to kill a person is, in our opinion, not a sufficient ground
for holding that X had the intention to kill Z – especially if we apply the subjective test
for intention (a test on which the courts place so much reliance).
2. The transferred culpability approach amounts to an application of the doctrine of versari
in re illicita (or the versari doctrine). According to this doctrine, if a person engages in
unlawful (or merely immoral) conduct, she is criminally liable for all the consequences
flowing from such conduct, irrespective of whether there was, in fact, any culpability on
her part in respect of such consequences, or even though she might not have foreseen
the particular consequence for which she is being held liable. If we thus apply the versari
doctrine, culpability is imputed to X in circumstances in which she actually had no
culpability (intention or negligence) in terms of the normal, recognised test for culpability.
As can be concluded, the versari doctrine should not be applied, as it amounts to a
disregard of the requirement of culpability. This doctrine was rejected by the Appeal Court
in Bernardus 1965 (3) SA 287 (A). Since this doctrine has been rejected by our courts, the
transferred culpability approach should similarly be rejected.
If we follow the concrete-figure approach, it follows that in aberratio ictus situations, we
merely apply the ordinary principles relating to culpability (intention and negligence)
in order to determine whether X had intention in respect of Z's death; we do not apply any specific rule (such as the transferred culpability rule) in addition to the general rules
relating to culpability. Aberratio ictus should be viewed merely as a description of a set of
facts that, like any other set of facts, is to be judged and evaluated according to the ordinary
rules relating to culpability. There is no such thing as a special "aberratio ictus rule" which is
to be applied in these types of situations, and in no others.
608
10.5.4 Judging aberratio ictus situations
Read
Read the following decision in your Reader: Mtshiza 1970 (3) SA 747 (A).
The most important judgment relating to aberratio ictus is that of Holmes JA in Mtshiza
1970 (3) SA 747 (A). This judgment accords with the concrete-figure approach set out above.
The judgment confirms that factual situations in which there is an aberratio ictus should be
judged as follows:
609
1. X will normally always be guilty of attempted murder in respect of Y – that is, the person
she wished to, but did not, kill.
2. As far as X's liability in respect of the person actually struck by her blow (Z) is concerned,
there are three possibilities:
a. If she had foreseen that Z would be struck and killed by the blow, and had reconciled herself to this possibility, she had dolus eventualis in respect of Z's death and
is guilty of murder in respect of Z.
b.
If X had not foreseen the possibility that her blow might strike and kill someone
other than Y, or if she had foreseen such a possibility but had not reconciled herself
138
to this possibility, she lacked dolus eventualis, and therefore cannot be guilty of
murder. However, this does not necessarily mean that X is not guilty of any crime.
Murder is not the only crime of which a person can be convicted if she causes
another's death. There is also the possibility of culpable homicide, which consists
in the unlawful negligent causing of the death of another. As we point out below
in our discussion of negligence, X will be negligent in respect of Z's death if the
intention to kill is absent, but if, as a reasonable person, she nonetheless ought
to have foreseen that she could cause the death of the victim (Z). In that event, X
will be guilty of culpable homicide.
c.
Only if it is established that both intention (in these instances, mostly in the form
of dolus eventualis) and negligence in respect of Z's death are absent on the part of
X will X be discharged on both a count of murder and one of culpable homicide.
Whether, in a given situation, X acted with intention or negligence in respect of Z's death,
or whether she lacked both intention and negligence in respect of Z's death, will depend
upon the facts of the particular case. We wish to emphasise and repeat that aberratio ictus
is merely a description of a factual situation. The expression "motor accident" is also merely
a description of a factual situation. It is impossible to infer from the mere fact that a motor
accident has occurred, without any further particulars being known, that the driver is guilty
of murder or culpable homicide, or that she is not guilty. Likewise, it cannot be inferred from
the mere fact that certain events amount to aberratio ictus that the perpetrator is necessarily
guilty of some or other crime, or that she is not guilty. Consequently, there is no such thing
as a special "aberratio ictus rule".
610
It is, therefore, wrong to allege that if a person performs an unlawful act with the intention
of killing one person and, in the execution of her act, she kills another, she is automatically
guilty of murdering the last-mentioned. What is wrong in this statement is the allegation that
X is automatically guilty of murder in respect of the other person. We can assume that she
is guilty of murder in respect of such other person only if closer investigation reveals that X,
in fact, had dolus eventualis in respect of that person's death. However, such an investigation
may reveal that X lacked dolus eventualis and that X was merely negligent in respect of the
other's death, or even that she lacked negligence.
611
10.5.5 Aberratio ictus and error in objecto – examples of factual situations
We should guard against equating aberratio ictus situations with error in objecto (mistake
relating to the object) situations.
As pointed out above, error in objecto is a form of mistake in that X believes the object
against which she directs her action to be something or somebody different from what it,
in fact, is. This kind of mistake can exclude X's intention if the object, as X believed it to be,
differs materially from the nature of the object as set out in the definitional elements. Aberratio ictus, on the other hand, is not a form of mistake, because X does not confuse the
person struck by the blow (i.e. the deceased) with the person at whom she is aiming. By way
of illustration, we now apply these principles to various sets of facts:
612
1. At dusk, X shoots at a figure that she believes to be a horse named Ruby, belonging to
her neighbour (against whom she carries a grudge). However, it appears that the figure
was not Ruby, but another horse that also belongs to her neighbour. X is charged with
139
CRW2601/1
malicious injury to property. (Remember that killing or injuring an animal belonging to
another normally amounts to the crime of malicious injury to property.) This is a case of
error in objecto, which affords X no defence – the type of object X had in mind still falls
within the description of the object as set out in the definitional elements ("somebody
else's property").
2. At dusk, X shoots at a figure that she believes to be her neighbour's horse. However, the
figure turns out to be her neighbour's donkey. Similarly, this is a case of error in objecto, which
affords X no defence on a charge of malicious damage to property: although the type of
object that X envisaged (somebody else's horse) differed from the type of object actually
struck by the blow (somebody else's donkey), the type of object that X envisaged still falls
within the description of the object in the definitional elements ("somebody else's property").
3. At dusk, X shoots at a figure that she believes to be her neighbour's horse. However, the
figure at which she aimed and which was struck by the bullet turns out to be a human
being. This is also a case of error in objecto. Assuming that X had never foreseen that the
figure might, in fact, be a human being, X cannot be convicted of murder, because the
type of object envisaged by X differed completely from the type of object that was actually
struck by the bullet. If it can be proved that, in the circumstances, a reasonable person in
X's position would have foreseen that the figure could have been a human being, X may
be found to have been negligent in respect of the victim's death and, therefore, guilty
of culpable homicide.
4. At dusk, X shoots at a figure that she believes to be her neighbour's horse. The bullet
misses the figure at which it was aimed and strikes a stable boy, Z, who is standing in
the darkness of the stable, somewhere behind the horse. This is a case of aberratio ictus,
because the bullet struck an object that was different from the one at which X was
aiming. In order to decide whether X was culpable in respect of Z's death, a court will
have to investigate the facts further: if it appears that X had foreseen the possibility that
Z might be behind the horse, and that he might be struck by the bullet, and that she
had reconciled herself to this possibility, she will be found to have had dolus eventualis
in respect of Z's death, and will, therefore, be guilty of murder. If she lacked intention,
but it appears that, in the circumstances, a reasonable person in X's position would have
foreseen that there might be a human being standing behind the horse, and that such
human being might be struck by the bullet, X would be found to have been negligent,
and, therefore, guilty of culpable homicide. X will, in any event, be guilty of attempted
malicious injury to property.
5. X shoots at a human being in the belief that it is her enemy, Y. The bullet misses Y and
strikes Z, who was standing a short distance behind Y. This is a case of aberratio ictus.
The ordinary test to determine intention and negligence must be applied in order to
determine X's possible culpability in respect of Z's death. (See previous set of facts.) X
will, in any event, be guilty of attempted murder in respect of Y.
6. X shoots at a human being in the belief that it is her enemy, Y. The bullet misses Y and
strikes a car's windscreen, shattering it (or the car passes in front of Y at the very moment
the shot is fired, so that the bullet strikes the windscreen). This is a case of aberratio ictus.
Whether X had the required intention for malicious injury to property will depend upon
whether she had foreseen that the car might be struck, and had nevertheless reconciled
herself to this possibility. X will, in any event, be guilty of attempted murder in respect of Y.
Tissen 1979 (4) SA 293 (T) and Raisa 1979 (4) SA 541 (O) are examples of cases in which the
above-mentioned principles were applied.
613
140
Note that if Y is not killed, but only injured, X is either guilty of assault or not guilty at all. While
there is a third possibility (namely culpable homicide on the basis of negligence) in those
cases in which Y dies, no such possibility exists in instances in which Y is merely injured. The
reason for this is that, in our law, there is no such crime as negligent assault – assault, like
murder, can be committed only intentionally.
614
Students often do badly in the examination when answering questions dealing with
aberratio ictus. This is usually the case if the set of facts given in the question is formulated in such a way that it is not specifically stated – or alleged by implication – that X
had foreseen the possibility of hitting Y or Z, or that X had acted negligently. Because
the form of culpability that X entertained is not expressly or implicitly mentioned in the
given set of facts, it is wrong to simply state categorically – as many students do – that
X committed murder or culpable homicide, or that she committed no crime. In other
words, it is wrong to come to such a definite conclusion.
Hint
A useful hint on how to answer such questions is to cast the answer in the form of conditional sentences. This means that you should begin your sentences with the word "if".
For example: "If the evidence brings to light that X had foreseen the possibility that ...,
then she would be guilty of ..." (In such a sentence, you should, of course, ensure that
you formulate the test for intention or dolus eventualis correctly.) Or you may write: "If
the evidence brings to light that X, as a reasonable person, should have foreseen the
possibility ..., then she would be guilty of ..." (In such a sentence, you should, of course,
ensure that you formulate the test for negligence correctly.) In this way, you supply what
the examiners are looking for in your answer.
10.6 MISTAKE RELATING TO UNLAWFULNESS
(Criminal Law 178-180; Reader 153-156; 168-171)
615
It was stated above that the intention (more specifically, X's knowledge) must relate to the
act, the circumstances contained in the definitional elements and the unlawfulness of the
conduct. If X's intention does not relate to all these factors (in other words, if she is not aware
of all of them), she labours under a misconception or material mistake, which affords her
a defence. We have already discussed mistakes relating to the act and the circumstances
contained in the definitional elements. We will now proceed to consider mistakes relating
to the unlawfulness of the conduct.
616
Before we can say that X has culpability in the form of intention (dolus), it must be clear that
she was also aware of the fact that her conduct was unlawful. This aspect of dolus is known
as knowledge (or awareness) of unlawfulness. (Clear recognition of this requirement in our
case law may be found in Campher 1987 (1) SA 940 (A) and Collett 1991 (2) SA 854 (A) 859.)
617
Intention is said to be "coloured" because, in our law, it always includes knowledge of unlawfulness. For this reason, intention in criminal law is often referred to as dolus – it is, in fact,
an "evil intention" in the sense that X directs her will towards particular conduct, knowing
that such conduct is unlawful. Without the latter awareness or knowledge, there is only a
"colourless intention", which is insufficient for liability. Knowledge of unlawfulness can, for
the sake of convenience, be divided into two subdivisions:
618
141
CRW2601/1
y X must know that her conduct is not covered by a ground of justification.
y X must know that her conduct, in the circumstances in which she acts, is punishable by
the law as a crime.
The second bullet point above deals with X's knowledge of the law, whereas the first doesn’t
necessarily do so. We will now consider these two bullet points one at a time, starting with
the first one.
619
10.6.1 Mistake relating to a ground of justification
The following is an EXAMPLE of a mistake relating to the existence of a ground of justification: Y leaves his home in the evening to attend a function. When he returns late at night, he
discovers that he has lost his front-door key. He decides to climb through an open window.
X, his wife, is woken by a sound at the window. In the darkness, she sees a figure climbing
through it. She believes the figure to be either a burglar or the man who has recently raped
several women in the neighbourhood. She shoots and kills the person, only to discover that
it is her own husband that she has killed (see illustration).
620
She has acted unlawfully because she cannot rely on private defence: the test in respect of
private defence is, in principle, objective, and in a case such as this, her state of mind is not
taken into account when determining whether she acted in private defence. Nevertheless,
although she intended to kill another human being, she will not be guilty of murder, because
her intention (knowledge) did not extend to include the unlawfulness of her act. She thought
that she was acting in private defence and, therefore, that she was acting lawfully. This is a
case of what is known as putative private defence (Joshua 2003 (1) SACR 1 (SCA).)
621
In Sam 1980 (4) SA 289 (T) X, was charged with pointing a firearm at Y in contravention of a
statute. However, the evidence revealed that X pointed the firearm at Y in the honest, yet
erroneous, belief that Y was a thief whom he had caught red-handed. X was acquitted, the
court holding that in a crime requiring intention (dolus), the state must prove beyond reasonable doubt that X acted with knowledge of unlawfulness and, in this case, they found that
X had lacked such knowledge.
622
142
There have also been a number of cases in which it was held that X was not guilty of rape if
he had been under the impression that Y had consented to intercourse (K 1958 (3) SA 420)
(A)), or that X did not commit theft if she believed that Y (the owner of the property) had
consented to her taking the property (Kinsella 1961 (3) SA 519 (C) 532).
623
Knowledge of unlawfulness may also be present in the form of dolus eventualis. In such a
case, X foresees the possibility that her conduct may be unlawful, but does not allow this to
deter her and continues her conduct, not caring whether it is lawful.
624
Read
Read the following decision in your Reader: De Oliveira 1993 (2) SACR
59 (A).
In Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) the court applied
an objective instead of a subjective test to determine whether X had lacked knowledge of
unlawfulness. X had shot four shots through a bathroom door, and thereby killed his girlfriend,
Y, who was standing behind the door. He was charged of murder but convicted by the trial
court of culpable homicide only on the basis that he had lacked intention in the form of dolus
eventualis but was nevertheless negligent.
625
In an appeal by the state on a point of law, the Supreme Court of Appeal found X guilty
of murder. The court held that the trial court had applied the principles of dolus eventualis
incorrectly and found X guilty on the basis that, at the time that he had fired the shots, X in
fact did foresee the possibility that he may cause the death of the person behind the door
and reconciled himself to such possibility. The court then also dealt with the X's defence
that he had believed that his life was threatened by the person behind the door and that he
was acting in private defence. The defence of putative private defence was rejected by the
Supreme Court of Appeal on the basis that X had provided no factual basis for his purported
belief that the person behind the door was about to attack him. The court relied on the De
Oliviera ruling that the test for putative private defence is purely subjective, whereas the
test for private defence is objective (para [52], citing Smalberger JA in De Oliviera 63i to 64b).
626
However, the Supreme Court of Appeal then stated that “the defence of putative private defence requires rational but mistaken thought” and that “although he may have been anxious,
it is inconceivable that a rational person could have believed he was entitled to fire at this
person with a heavy-calibre firearm, without taking even that most elementary precaution
of firing a warning shot” (para [54]. We submit that the Supreme Court of Appeal had erred
in applying an objective test to determine whether X had lacked knowledge of unlawfulness. The mere enquiry should have been whether X had laid a factual foundation that he
honestly believed that he was acting in defence against an attack. Whether such a belief was
irrational was therefore irrelevant since the test is purely subjective.
627
10.6.2 Mistake of law
628
(Criminal Law 180-182; Reader 105-109)
1. General
We stated above that the requirement of knowledge of unlawfulness can be divided into
two subdivisions:
629
143
CRW2601/1
y X's awareness that her conduct is not covered by a ground of justification and
y X's awareness that the type of conduct she is committing is prohibited by the law as a crime
We will now consider the second aspect of awareness of unlawfulness. Here, it is X's knowledge
of the law, and not of the facts, that has to be considered. (The first aspect of awareness of
unlawfulness may conceivably also cover a case where X, because of her making a mistake
relating to the law, erroneously believes her conduct to be justified.)
630
The important question here is whether a mistake relating to the law, or ignorance of the
law (which is essentially the same thing), constitutes a defence to a criminal charge. Should
an accused who admits that she has committed the forbidden act, that it was unlawful, and
even that she had (the necessary factual) knowledge of all the material surrounding circumstances, expect to be acquitted merely because she did not know that it was a crime to do
what she did?
631
It is, of course, difficult to imagine a court believing an accused who alleges that she did
not know that murder, rape, assault or theft was a crime. These are well-known crimes in all
civilised communities. On the other hand, there are lesser-known crimes in our law, such as
those relating to specialised technical matters, or offences created in subordinate legislation.
632
2. The position prior to 1977
In English law, the principle has always been that, subject to certain qualifications, ignorance
of the law is no defence. This rule is usually expressed by the following well-known maxims:
"ignorance of the law is no excuse" and "everybody is presumed to know the law". Prior to
1977, the position was the same in South African law. However, in today's complex world,
the idea that everybody is presumed to know the law is an untenable fiction. Nobody, not
even the most brilliant lawyer, could keep abreast of the law in its entirety, even if she read
statutes, government and provincial gazettes and law reports from morning till night.
633
3. The current South African law
Read
Read the following decision in your Reader: De Blom 1977 (3) SA 513 (A).
In 1977 our law on this subject was radically changed as a result of the decision of the Appeal
Court in De Blom 1977 (3) SA 513 (A). In this case, X was charged, inter alia, with contravening
a certain exchange-control regulation, according to which it was (at that time) a crime for a
person travelling abroad to take jewellery worth more than R600 out of the country without
prior permission. X's defence with regard to this charge was that she did not know that such
conduct constituted a crime. The Appeal Court held that she had truly been ignorant of the
relevant prohibition, upheld her defence of ignorance of the law, and set aside her conviction on the charge.
634
Rumpff CJ declared (at 529) that at this stage of our legal development, it had to be accepted
that the cliché "every person is presumed to know the law" no longer had any foundation,
and that the view that "ignorance of the law is no excuse" could, in the light of the presentday view of culpability, no longer have any application in our law. If, owing to ignorance of
the law, X did not know that her conduct was unlawful, she lacked dolus; if culpa was the
required form of culpability, her ignorance of the law would have been a defence if she had
635
144
proceeded, with the necessary caution, to acquaint herself with what was expected of her
(see 532). There is no indication in the judgment that ignorance of the law excludes dolus only
if such ignorance was reasonable or unavoidable. In other words, the test is purely subjective in this respect. To sum up: according to our current law, ignorance of the law excludes
intention and is, therefore, a complete defence in crimes requiring intention. The effect of
a mistake regarding the law is, therefore, the same as the effect of a mistake regarding a
material fact: it excludes intention.
It is not only when X is satisfied that a legal rule exists that she is deemed to have knowledge
of it: it is sufficient if she is aware of the possibility that the rule may exist, and reconciles
herself to this possibility (dolus eventualis). In addition, she need not know precisely which
section of a statute forbids the act, or the exact punishment prescribed, for her to be liable.
It is sufficient that she be aware that her conduct is forbidden by law (generally).
636
Furthermore, the difference between crimes requiring intention and those requiring only
negligence must be borne in mind. It was emphasised in De Blom (supra) at 532F-H that it
is only in respect of the first-mentioned category of crimes that actual knowledge of the
legal provisions is required for liability. In crimes requiring negligence, it is sufficient for
the purposes of liability that X failed to exercise the required care and circumspection in
acquainting herself with the relevant legal provisions.
637
Activity 10.2
(1) X, a 17-year-old girl, goes to a rave at a club in Johannesburg. Her friend gives her
a packet of cigarettes. X puts the cigarettes in her pocket, thinking that they are
ordinary cigarettes. The police raid the club. X is searched and the cigarettes that
they find in her pocket turn out to contain dagga mixed with Whoonga. X is charged
with the crime known as "possession of drugs". X tells you (her lawyer) that although
she knows very well that possession of drugs is a crime, she was unaware that the
cigarettes in her possession contained Whoonga and dagga instead of ordinary
tobacco. What defence would you raise on behalf of X?
(2) X, a 30-year-old illiterate member of an indigenous tribe in a remote area of the
Limpopo Province, comes to Johannesburg to visit her friend. This is the first time that
she has left her rural home. In the community from which she comes, it is customary
to smoke dagga from an early age for medicinal and recreational purposes. X brings
a suitcase full of dagga along with her to Johannesburg. The taxi that she is travelling
in is stopped by the police near Pretoria. All the travellers are searched for drugs. X is
found to be in possession of dagga and arrested. X tells you (her lawyer) that nobody
had ever told her that it is against the law carry such a large amount of dagga for
personal use. What defence would you raise on behalf of X?
13
Feedback
(1) Your defence would be that, owing to a mistake of fact, X did not have the required
intention. She did not know that the cigarettes contained Whoonga and dagga, and
was therefore mistaken as to the existence of one of the definitional elements of the
crime. She was mistaken as to a material fact relating to her possession.
(2) Your defence would be that X lacked intention because she had made a mistake as
regards the law. She was under the impression that her conduct did not constitute a crime.
145
CRW2601/1
GLOSSARY
638
error in objecto
640
642
aberratio ictus
versari in re illicita
639
mistake relating to the object
the going astray of the blow
641
literally "to engage in an unlawful activity"; in practice, this is the
rule (rejected by the Appellate Division) that if a person engages
in an unlawful activity, he or she is criminally liable for all the consequences flowing from the activity, irrespective of whether there
was, in fact, culpability in respect of such conduct.
643
SUMMARY
645
1. The intention must relate to the act, the circumstances contained in the definitional
elements and the unlawfulness of the conduct. X must be aware (have knowledge) of all
these factors. If she is unaware of any of these factors, it cannot be said that she intended
to commit the crime. X is then mistaken as to the existence of these factors.
2. Mistake need not be reasonable to exclude intention. The test to determine whether mistake
has excluded intention is subjective. See the criticism of the Pistorius case in this regard.
3. In order to exclude intention, the mistake must be material. Mistake is material if it relates to the
act, the circumstances set out in the definitional elements or the unlawfulness of the conduct.
4. In Goosen, the Appellate Division held that a mistake with regard to the chain of causation
may indeed exclude intention, provided the actual chain of events differed materially
from that envisaged by the perpetrator.
5. a. Aberratio ictus, or the going astray or missing of the blow, refers to a set of facts in
which X aims a blow at Z, the blow misses Z and strikes Y. This is not a form of mistake.
b. In order to determine whether, in such a set of facts, X is guilty of an offence, you
should merely apply the normal principles with regard to intention and negligence.
c. It is wrong to apply the transferred culpability approach in an aberratio ictus factual
situation, that is, to argue that because X had intended to kill a human being and
did just that, she necessarily had the intention to kill the actual victim.
5. Absence of awareness of unlawfulness excludes intention.
6. Awareness of unlawfulness implies that X is aware
a. that her conduct is not covered by a ground of justification
b. that the type of conduct she engages in is actually regarded by the law as constituting an offence
7. The effect of the decision in De Blom is that ignorance of or a mistake about the law
excludes intention.
Further reading
For more information on intention and mistake, read:
• Burchell Principles of Criminal Law (2016) 399–415.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 248–255.
146
10
Self-assessment
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Explain the meaning of the term "mistake".
Does mistake exclude intention only if the mistake is reasonable? Explain.
Will error in objecto always (without exception) constitute a defence?
Explain the difference between a material mistake and a non-material mistake.
Explain briefly what is meant by a mistake "with regard to the causal chain of events"
and indicate whether this form of mistake excludes intention.
Briefly discuss the two approaches followed in legal literature in determining liability in
the case of aberratio ictus (going astray or missing of the blow), and indicate which one
of these approaches you prefer and why.
Distinguish between error in objecto and aberratio ictus.
Explain, with reference to an example, what you understand by a mistake with regard
to the presence of a ground of justification.
Discuss the decision in De Blom 1977 (3) SA 513 (A) critically and indicate its effect on
South African law.
147
CRW2601/1
LEARNING UNIT 11
Negligence
Contents
Learning outcomes
11.1 Background
11.2 Objective test
11.3 Definition of negligence
11.4 Abbreviated way of referring to negligence
11.5 Discussion of the definition of negligence
11.5.1 Negligence may exist in respect of either a result or a circumstance
11.5.2 The concept of the reasonable person
11.5.3 Reasonable foreseeability
11.5.4 The taking of steps by the reasonable person to avoid the result ensuing
11.5.5 X's conduct differs from that of the reasonable person
11.5.6 Negligence in respect of a circumstance
11.6 Subjective factors
11.7 Exceeding the bounds of private defence
11.7.1 Introduction
11.7.2 Application of principles of culpability
11.7.3 Killing another
11.7.4 Assault
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• comment on the requirement of negligence by expressing an informed opinion as
to whether an accused has acted with negligence, having regard to the reasonable
person test and the concepts of the reasonable person, reasonable foreseeability and
the taking of reasonable steps
• determine the liability of an accused who has exceeded the bounds of private defence
by applying the tests of intention and negligence
148
11.1 BACKGROUND
(Criminal Law 182-192)
646
We have already shown above that
647
We have already discussed the concepts of criminal capacity and intention. In this study unit,
we discuss negligence, as well as a certain matter that can be properly understood only if you
have studied both intention and negligence – this is the question of how a case of exceeding the limits of private defence should be treated.
648
It is not only those unlawful acts that are committed intentionally that are punishable.
Sometimes the law also punishes unlawful acts that are committed unintentionally, or the
unintentional causing of results, namely if X acts or causes the result negligently. Generally
speaking, a person's conduct is negligent if it falls short of a certain standard set by the law.
This standard is, generally speaking, the caution that a reasonable person would exercise or
the foresight that a reasonable person would have in the particular circumstances.
649
In crimes of intention, X is blamed for knowing or foreseeing that his conduct is proscribed
by the law and that it is unlawful. In crimes of negligence, X is blamed for not knowing, not
foreseeing or not doing something, although – according to the standards set by the law –
he should have known or foreseen or done it. Intention always has a positive character: X
wills or knows or foresees something. Negligence, on the other hand, always has a negative
character: X does not know or foresee something, although he should – according to the
norms of the law – have known or foreseen it. Whereas, in legal literature, intention is often
referred to as dolus, negligence is often referred to as culpa.
650
149
CRW2601/1
11.2 OBJECTIVE TEST
The test for negligence is objective, except for a few less important exceptions (to which
we will refer later). As we have seen above, the test for intention is subjective, since we have
to consider what X's actual knowledge was or what he actually envisaged the facts or the
law to be. When we describe the test for negligence as objective, we mean that we have to
measure X's conduct against an objective standard. This objective standard is that which
a reasonable person would have known or foreseen or done in the same circumstances.
651
The test for intention is subjective because we have to determine what X's thoughts were
as an individual (i.e. as a subject), or what he actually envisaged. Expressed very plainly: we
have to ascertain "what went on in his (X's) head". The test for negligence, on the other hand,
is described as objective, since here we are not concerned with what X actually thought or
knew or foresaw, but only with what a reasonable person in the same circumstances would
have foreseen or what he would have done. Here (in negligence), X's conduct is measured
against "something" (a standard) outside himself – namely what a reasonable person would
have foreseen or done.
652
11.3 DEFINITION OF NEGLIGENCE
A person's conduct is negligent if
1. a reasonable person in the same circumstances would have foreseen the possibility
that the particular circumstance might exist, or that his conduct might bring about
the particular result;
2. a reasonable person would have taken steps to guard against such a possibility;
and
3. the conduct of the person whose negligence has to be determined differed from the
conduct expected of the reasonable person.
11.4 ABBREVIATED WAY OF REFERRING TO NEGLIGENCE
An abbreviated way of referring to negligence (in respect of either a result or a circumstance)
is simply to say that the person concerned did not conduct himself as the reasonable person
would have conducted himself in the same circumstances, or – expressed even more briefly
– that the person concerned acted unreasonably. Sometimes negligent conduct is briefly
referred to by saying: "he must have done that" or "he should not have done that" or "he
ought to have known or foreseen or done that". These everyday expressions are merely other
ways of stating that a reasonable person would not have acted in the same way as X did.
653
Note that the meaning of the word "must" can be ambiguous. If the adjudicator says
"he must have foreseen the death", it can conceivably mean "I draw the inference from
the facts that X did, in fact, subjectively foresee the possibility of death". However, it can
also mean "X did not foresee the possibility of death, but the reasonable person would
have" (in other words, X should reasonably have foreseen it). In the former instance, the
adjudicator signifies that X had dolus eventualis, and in the latter instance, he signifies
that intention was absent, and that X was merely negligent. In order to avoid ambiguity, we would strongly advise you to confine your use of the words "must", "must have"
and "ought to" to cases in which you describe the presence of negligence as a form of
culpability. We prefer the formulation "ought to have foreseen".
150
11.5 DISCUSSION OF THE DEFINITION OF NEGLIGENCE
11.5.1 Negligence may exist in respect of either a result or a circumstance
In order to understand the definition of negligence given above, it is first of all necessary to
consider the distinction between formally and materially defined crimes. In the discussion of
causation above, we explained that crimes may be divided into two groups, namely formally and
materially defined crimes. In formally defined crimes, the law forbids a specific act or omission,
irrespective of its result. In materially defined crimes (also sometimes referred to as result crimes),
the law forbids conduct that causes a specific condition (result). (If you do not understand this
subdivision properly, you must reread the explanation of this subdivision in the study unit dealing
with causation.) Certain formally defined crimes require intention and others require negligence.
The same applies to materially defined crimes: some require intention and some, negligence.
654
In materially defined crimes requiring negligence, it must be proved that X was negligent
in respect of the causing of the result. In formally defined crimes requiring negligence, it
must be proved that X was negligent in respect of a circumstance.
655
In practice, culpable homicide is by far the most important crime in respect of which the
form of culpability is not intention, but negligence. Culpable homicide is a materially defined
crime, since the crime proscribes the causing of a certain result, namely another's death.
Culpable homicide is defined as the unlawful, negligent causing of another's death. Barring
a certain form of the crime of contempt of court, culpable homicide is the only commonlaw crime that does not require intention, but negligence. There are a number of statutory
crimes requiring culpability in the form of negligence. Most of them are formally defined,
such as the crime of negligently driving a vehicle (contravention of s 63(1) of the National
Road Traffic Act 93 of 1996), and the crime of unlawfully possessing a firearm (contravention
of s 3 of the Firearms Control Act 60 of 2000).
656
Negligence was defined above in such a way that it refers to negligence in respect of both a
circumstance (see point (1)(a) of the definition) and a result (see point (1)(b) of the definition).
657
Since culpable homicide is the most important crime requiring negligence, and since this crime
is materially defined, the discussion of negligence that follows will, for the most part, concentrate
on negligence in respect of the causing of a result. In order not to overcomplicate the statements
that follow, they will mostly be formulated in such a way that they refer only to negligence in
respect of a result. Later on in the discussion, we will briefly say something about negligence in
the context of formally defined crimes, that is, negligence in respect of a circumstance.
658
11.5.2 The concept of the reasonable person
The expression "reasonable person" appears in both the first and second legs (points (1) and
(2)) of the definition of negligence. Before considering the first two legs of the definition, it
is necessary to explain what is meant by "reasonable person".
659
1. The reasonable person is merely a fictitious person that the law invents to personify
the objective standard of reasonable conduct that the law sets in order to determine
negligence.
2. In legal literature, the reasonable person is often described as the bonus paterfamilias
or diligens paterfamilias. These expressions are derived from Roman law. Literally, they
mean the "diligent father of the family", but in practice, this expression is synonymous
with the reasonable person.
151
CRW2601/1
3. In the past, the expression "reasonable man" was usually used in legal literature, instead
of "reasonable person". Since 1994, when South Africa obtained a new Constitution that
emphasises, inter alia, gender equality, the term "reasonable man" ought to be avoided
because of its sexist connotation.
4. By "reasonable person", we mean an ordinary, normal, average person. In Mbombela
1933 AD 269 273, the court described the reasonable person as "the man (sic) of ordinary
knowledge and intelligence". He is neither, on the one hand, an exceptionally cautious or
talented person (Van As 1976 (2) SA 921 (A) 928), nor, on the other, an underdeveloped
person, or somebody who recklessly takes chances. Accordingly, the reasonable person
finds himself somewhere between these two extremes. In Burger 1968 (4) SA 877 (A)
879, Holmes JA expressed this idea in almost poetical language when he said:
One does not expect of a diligens paterfamilias any extremes such as Solomonic wisdom,
prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained
reflexes of the racing driver. In short, a diligens paterfamilias treads life's pathway with
moderation and prudent common sense.
The reasonable person is, therefore, not somebody who runs away from every foreseen
danger; he may sometimes take a reasonable risk.
660
5. The reasonable-person concept embodies an objective criterion. Personal, subjective
characteristics, such as his sex, race, emotional stability or lack thereof, degree of education,
or superstitiousness or lack thereof, are not taken into account.
6. The reasonable person is not a perfectly programmed automaton that can never make
a mistake. He remains an ordinary flesh-and-blood human being whose reactions are
subject to the limitations of human nature. In crisis situations, when he has to take a
quick decision, he can, like any other person, commit an error of judgement, that is, make
a decision that later turns out to be wrong. It follows that the mere fact that a person has
committed an error of judgement does not necessarily mean that he was negligent.
11.5.3 Reasonable foreseeability
Under this heading, we discuss the first leg (i.e. point (1)) of the definition of negligence given
above, namely whether the reasonable person would have foreseen the possibility of the
particular circumstance existing or the particular result ensuing. In practice, this is the most
important leg or component of the test for negligence.
661
1. The courts sometimes ask whether the reasonable person would have foreseen the
possibility (of the result ensuing), and on other occasions, whether X ought reasonably to
have foreseen the possibility. However, it is beyond doubt that both expressions mean
the same thing: foreseeability by the reasonable person and reasonable foreseeability
by the accused are viewed as the same thing.
2. What must be foreseeable is the possibility that the result may ensue, and not the
likelihood thereof (Herschell v Mrupe 1954 (3) SA 464 (A) 471).
3. The test is whether the reasonable person in the same circumstances as those in which
X found himself would have foreseen the particular possibility. This aspect of the test
is very important. Our courts do not assess negligence in vacuo ("in a vacuum"), but in
concreto, that is, in the light of the actual circumstances in which X found himself at the
time he committed his act.
152
Thus if the question arises whether X, a motorist, was negligent when he ran over and
killed a pedestrian in a street during a heavy rainstorm, the question the court must
ask is what a reasonable person who was driving in a street during a heavy downpour
would have foreseen. It would be wrong to place the reasonable person behind the steering wheel of a motorcar on an occasion when the sun was shining brightly.
662
If X finds himself in a sudden emergency when driving his car, for example, and has
to make a quick decision, which, in the event, results in somebody's death, the task of
the court that has to decide whether he was negligent is, likewise, to enquire how the
reasonable person would have behaved in a similar situation.
663
4. In the discussion of intention above, it was seen that the intention must relate not
only to the act, but also to all the circumstances and consequences set out in the
definitional elements, as well as to the unlawfulness. The same principle applies to
negligence. Actually, negligence in respect of the act plays a role only in formally defined
crimes. We will briefly consider negligence in these crimes below. In materially defined
crimes, negligence must relate to the particular result specified in the definitional elements
of the crime concerned. In culpable homicide, the result specified in the definition of the
proscription is somebody else's death.
This means that if X is charged with culpable homicide, and the question arises whether
he was negligent, the question to be answered is not: "Would the reasonable person have
foreseen the possibility that Y might be injured as a result of X's conduct?" The correct
question is: "Would the reasonable person have foreseen the possibility that Y might be
killed as a result of X's conduct?" (Bernardus 1965 (3) SA 287 (A) 296). Although it is well
known that, because of the frailty of the human body, death may be caused by even a
mild assault, it is wrong to say that the reasonable person will always foresee that even
a mild assault, such as a slap, may cause Y's death. In certain exceptional cases, death
resulting from a minor assault may not be foreseeable, such as where the victim had an
unusual physiological characteristic such as a thin skull or a weak heart (Van As 1976 (2)
SA 921 (A) 927).
664
11.5.4 The taking of steps by the reasonable person to avoid the result
ensuing
Under this heading, we discuss the second leg (i.e. point (2)) of the definition of negligence
given above, that is, the requirement that the reasonable person would have taken steps to
guard against the possibility of the result ensuing. In practice, this second leg of the test for
negligence is seldom of importance because, in the vast majority of cases, the reasonable
person who had foreseen the possibility of the result ensuing (i.e. who has complied with
the first leg of the test) would also have taken steps to guard against the result ensuing.
However, there are cases in which the reasonable person who has foreseen the possibility
will not take steps to guard against the result ensuing. This is where the foreseen possibility
is far-fetched or remote, or where the risk of the result ensuing is very small, or where the
cost and effort necessary to undertake the steps do not outweigh the more important and
urgent purpose of X's act. In deciding whether the reasonable person would have taken
steps to guard against the result ensuing, it may be necessary to balance the social utility of
X's conduct against the magnitude of the risk of damage created by his conduct.
665
153
CRW2601/1
Activity 11.1
A fire breaks out in a building in a city centre, trapping a number of people inside. Their
lives are in danger. The fire brigade is summoned. With the fire engine's sirens blaring,
X, the driver of the fire engine, drives as fast as he can through busy streets to reach the
fire in time. In the course of doing so, he drives through an intersection while the robot
is red, colliding with another vehicle. Is X's conduct negligent?
Feedback
14
This is an example of a situation in which the reasonable person would not have taken steps
to guard against the result ensuing (i.e. where the law does not reasonably expect X to take
steps to guard against the possibility).
The reasonable person in X's position would foresee that conduct such as this may result in
damage, or injury to other people in the street. Nevertheless, the reasonable person in these
circumstances would decide that it is not necessary to take steps to guard against causing
damage or injury, for the following reason: to drive slowly through the streets, stopping at
every red robot, could result in the people in the burning building losing their lives, and this
would, in all probability, result in the loss of more lives than would be the situation had the
fire engine raced through the streets. X's conduct is therefore not negligent.
11.5.5 X's conduct differs from that of the reasonable person
We have now discussed the first two legs of the definition of negligence. It is not necessary
to say much on the third leg of the test. It merely embodies the self-evident rule that X is
negligent if his conduct differs from that which a reasonable person would have foreseen
or guarded against.
666
11.5.6 Negligence in respect of a circumstance
In the discussion thus far, the emphasis has been on negligence in respect of a result. Negligence in respect of a result is found only in materially defined crimes (result crimes). As was
pointed out above, there are also certain formally defined crimes that require culpability in
the form of negligence. Thus, it was held in Mnisi 1996 (1) SACR 496 (T), for example, that
the crime of possessing a firearm without a licence (currently a contravention of s 3 of the
Firearms Control Act 60 of 2000) is one in respect of which the state need merely prove culpability in the form of negligence. This is a formally defined crime, since we are not dealing
here with the causing of a certain result. To obtain a conviction, the state need not prove the
causing of a certain result, but merely the existence of a certain circumstance, namely the
possession by X of a firearm without his having a licence for it. What do we mean when we
say that X was negligent, not in respect of a result, but merely in respect of a circumstance?
667
X is negligent in respect of a circumstance if a reasonable person in the same circumstances
would have foreseen the possibility that the circumstance could exist. In Duma 1970 (1) SA
70 (N), for example, X was charged with unlawfully possessing a firearm. He was caught in
possession of a firearm without having a licence to possess it. The question was whether he
had committed the crime negligently. X's story, which the court accepted, was that he believed
in good faith that he had picked up a toy revolver, and that he had then put it in his pocket.
668
154
The court held that, in order to prove negligence, the state must prove "that, although the
appellant genuinely believed that he had picked up a toy, a diligens paterfamilias in his position would not have entertained that belief but would have known, or at least suspected,
that it was a firearm and would have made certain of its nature". The court held that the state
had not proved this, and the court accordingly acquitted X.
11.6 SUBJECTIVE FACTORS
As we have already emphasised, the test to determine negligence is, in principle, objective,
namely the foreseeability of the result or circumstance by the reasonable person. However,
this rule is subject to the following exceptions:
669
1. The negligence of children who, despite their youth, have criminal capacity, ought to
be determined, we submit, by inquiring what the reasonable child would have done or
foreseen in the same circumstances.
EXAMPLE
In T 1986 (2) SA 112 (O), the court had to decide whether X, a 16-year-old schoolboy,
had committed culpable homicide when he killed a fellow-schoolboy during an argument.
The court found him not guilty on the ground that, inter alia, the test for negligence in
this particular case was not the test of the "reasonable person", but of the "reasonable
16-year-old schoolboy".
670
671
2. In the case of experts, it must be asked whether the reasonable expert who embarks
upon a similar activity would have foreseen the possibility of the particular result ensuing
or the particular circumstance existing (Van Schoor 1948 (4) SA 349 (C) 350).
EXAMPLE
When determining whether a heart surgeon was negligent during an operation in which
the patient died, his actions certainly cannot be measured by the yardstick of how a
reasonable person, who – for all practical purposes – is a layman in the medical field,
would have acted.
672
673
3. If X happens to have knowledge of a certain matter that is superior to the knowledge a
reasonable person would have had of the matter, he cannot expect a court to determine
his negligence by referring to the inferior knowledge of the reasonable person. His
superior subjective knowledge of a fact of which the reasonable person would have had
no knowledge must indeed be taken into account (Mahlalela 1966 (1) SA 226 (A) 229).
EXAMPLE
X is a member of a team of workers that is cleaning up a certain terrain. A tin can in which
a hand grenade has been hidden is lying on the terrain. X picks it up and throws it to
one side. The result is an explosion in which Y is killed. The reasonable person would not
have known or foreseen that there was a hand grenade in the tin. Assume that X, in fact,
happened to have known that there was a hand grenade in the tin. If X is charged with
culpable homicide and the question whether he was negligent has to be answered, X
cannot expect his negligence to be determined by enquiring whether the reasonable
person would have known or foreseen that there was a hand grenade in the tin. X's particular subjective knowledge of the presence of the hand grenade in the tin must indeed
be taken into account. (This would, in all probability, result in the court’s holding that he
was indeed negligent.)
674
675
155
CRW2601/1
11.7 EXCEEDING THE BOUNDS OF PRIVATE DEFENCE
(Criminal Law 191-192; Reader 62-66; 110-113)
676
11.7.1 Introduction
Above, in the study unit setting out the ground of justification known as private defence,
we have already explained that if X relies on private defence, but the evidence reveals that
he has exceeded the bounds of private defence, he cannot rely on private defence and his
conduct is unlawful. The question that we have not yet answered is: What crime does X commit in such a case? In order to answer this question, we must know what the two forms of
culpability – intention and negligence – entail. We have now reached the stage where we
have explained both these forms of culpability. We are therefore now in a position to explain
what crime, if any, X commits if he exceeds the limits of private defence.
677
11.7.2 Application of principles of culpability
The question arises how the principles relating to culpability must be applied in cases where
the bounds of private defence are exceeded. As seen above, a person acting in private
defence acts lawfully, and his non-liability is based upon the absence of an unlawful act.
Consequently, of what must he be convicted if he oversteps the bounds of private defence,
such as when he inflicts more harm upon the aggressor than is necessary to protect himself
or the person he is defending, and his act is, therefore, unlawful?
678
The answer to this question is clearly set out in Ntuli 1975 (1) SA 429 (A). In this case, the accused killed an older woman with whom he had an argument, by striking her on the head
with two hard blows. The trial court found that he had exceeded the bounds of private defence, and convicted him of culpable homicide. On appeal, the finding was confirmed and
the Appeal Court laid down the following important principles:
679
1. If the victim dies, the accused may be guilty of either murder or culpable homicide,
depending upon his culpability. If the accused did not have any culpability, he should
be found not guilty.
2. The ordinary principles relating to intention and negligence should be applied to all cases
where the bounds of private defence have been exceeded.
11.7.3 Killing another
We first consider the situation in which the party who was originally attacked (X) kills the
original aggressor (Y) while exceeding the bounds of private defence. The following set of
facts is an example of such a situation. Y unlawfully assaults X by hitting him in the face with
his fists. X, in order to defend himself, draws a knife and stabs Y in the arm. As a result of
sustaining the stab wound, Y abandons his attack. X nevertheless continues his retaliatory
action by inflicting three further stab wounds on Y's chest and neck, as a result of which Y
dies. The question now is whether X has committed a crime, and if so, which one.
680
In this set of facts, three possible legal conclusions must be considered, namely (1) that X is
guilty of murder, (2) that he is guilty of culpable homicide, or (3) that he is not guilty of any
crime. To sustain a conviction of murder or culpable homicide, there must have been an unlawful causing of another's death. It is clear that X's act caused Y's death. Since X exceeded
the bounds of private defence, he cannot rely on private defence as a ground of justification
and, therefore, his act is also unlawful. (If X had abandoned his retaliatory attack upon Y after
681
156
the infliction of the first stab wound, his retaliation would have fallen within the bounds of
private defence.) The only question that remains to be answered is whether X acted with
culpability, and if so, whether the culpability was present in the form of intention or negligence. X will be guilty of murder if he had the intention to murder Y. Before a court can find
that he had such an intention, two requirements must be complied with:
1. It must be clear that X had, in fact, known that his conduct would result in Y's death, or
that he had foreseen that this might happen and reconciled himself to this possibility.
This is "colourless" intention in respect of death.
2. The intention referred to above, however, is not yet sufficient to warrant a conviction of
murder. In the above discussion of intention – and especially of awareness of unlawfulness
–we stated that the intention required for a conviction (i.e. dolus) must always be "coloured".
This would be the case if, apart from intending to commit the unlawful act or causing the
unlawful result, X also knew (or foresaw) that his conduct would be unlawful. Therefore,
before a court can find that X intended to murder Y, it must, in the second place, be clear
that he (X) knew that his conduct was also unlawful (in other words, that it exceeded the
bounds of private defence), or that he foresaw this possibility and reconciled himself to it. In
short, intention to murder consists in intention to kill plus the intention to kill unlawfully.
We now return to the set of facts mentioned above, where X kills Y while exceeding the
bounds of private defence. It is usually easy to find that X had "colourless" intention in respect of death. In fact, even where X kills Y in (lawful) private defence, he knows or foresees
that his act will lead to Y's death. However, what X often does not foresee when exceeding
the bounds of self-defence in the heat of the moment, is that he is engaged in an unlawful
attack upon Y – in other words, an attack that exceeds the bounds of self-defence. Where,
in the discussion above, we have used the word "knows", the reference is to dolus directus.
Where we have used the expression "foresees the possibility ... and reconciles", the reference
is to dolus eventualis.
682
If the intention to murder, as explained above, is absent, X may nevertheless be convicted
of culpable homicide if he ought reasonably to have foreseen that he might exceed the
bounds of self-defence and that he might kill the aggressor. If that is the case, he was negligent in respect of the fatal result (Joshua 2003 (1) SACR 1 (SCA)). If, subjectively, he did not
foresee the possibility of death and if it also cannot be said that he ought reasonably to
have foreseen it, both intention and negligence in respect of death are absent and he is
not guilty of either murder or culpable homicide.
683
11.7.4 Assault
If X did not kill Y, but only injured him while exceeding the bounds of self-defence, there are
only two possibilities, namely that X is guilty of assault, or that he is not guilty of any offence.
684
The crime of assault can be committed only intentionally. There is no such crime as negligent
assault in our law. If X subjectively knew or foresaw the possibility that he might overstep
the bounds of self-defence and, in so doing, would or could injure Y, the original aggressor,
then he had the necessary intention to assault and is guilty of assault. If he did not foresee
these possibilities, the intention to assault is absent and he is not guilty. Mere negligence in
respect of the injury does not render him guilty of any crime.
685
157
CRW2601/1
GLOSSARY
686
688
690
culpa
687
bonus paterfamilias
diligens paterfamilias
negligence
literally "the good father of the family"; in practice, "the reasonable person"
689
literally "the diligent father of the family"; in practice, "the
reasonable person"
691
SUMMARY
693
1. The test to determine negligence is (barring certain exceptions) objective.
2. See the definition of negligence above.
3. An abbreviated way of referring to negligence is to say that X acted in a way that differed
from the way the reasonable person would have acted in the circumstances.
4. The crux of the test to determine whether X was negligent in a materially defined crime
(i.e. a result crime) is the following: Would the reasonable person in the circumstances
have foreseen that the particular consequence could ensue?
5. The crux of the test to determine whether X was negligent in a formally defined crime is
the following: Would the reasonable person in the circumstances have foreseen that the
circumstance in question could exist?
6. The reasonable person is also referred to as the bonus or diligens paterfamilias. This means
the ordinary, normal, average person. He is not an exceptionally cautious person who
would never take reasonable risks.
7. In order to determine whether the reasonable person would have foreseen the reasonable
possibility that the circumstance may exist or the consequence ensue, the reasonable
person must be placed in the same circumstances as those in which X found himself at
the time of the commission of the act.
8. Apart from enquiring whether the reasonable person would have foreseen a certain
possibility, we must, in order to determine negligence, also enquire whether the reasonable
person would have taken steps to guard against the possibility of the result ensuing.
9. Although the test for negligence is objective, subjective factors are taken into account
in the following instances:
a. children
b. experts
c. superior knowledge
10. In terms of the decision in Ntuli, the ordinary principles relating to intention and negligence
must be applied to determine whether a person who overstepped the boundaries of
private defence is guilty of a crime.
Further reading
For more information on negligence, read:
• Burchell Principles of Criminal Law (2016) 416–436.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 219–226.
158
Self-assessment
11
(1) Define the test for negligence.
(2) Discuss the concept of the reasonable person.
(3) Discuss the first leg of the test for negligence, that is, the question whether the reasonable
person would have foreseen the possibility that the particular result might ensue or the
particular circumstance might exist.
(4) Discuss the second leg of the test for negligence, that is, the question whether the reasonable person would have taken steps to guard against the possibility of the result ensuing.
(5) How does the test for negligence in formally defined crimes differ from the test for negligence in materially defined crimes?
(6) What is the abbreviated way in which we may refer to negligence?
(7) Name the subjective factors that may be taken into consideration in determining negligence, and give an example of each factor.
(8) (a) When can X be convicted of murder if he killed his attacker in a situation in which
he exceeded the bounds of private defence? Discuss.
(b) When can X be convicted of culpable homicide if he killed his attacker in a situation
in which he exceeded the bounds of private defence? Discuss.
159
CRW2601/1
LEARNING UNIT 12
The effect of intoxication and provocation on liability
Contents
Learning outcomes
12.1 Background
12.2 Introduction
12.3 Involuntary intoxication
12.4 Voluntary intoxication
12.4.1 Actio libera in causa
12.4.2 Intoxication resulting in mental illness
12.4.3 Remaining instances of voluntary intoxication
12.5 Development of the defence of voluntary intoxication
12.5.1 The law before 1981
12.5.2 The law after 1981 - the decision in Chretien and the rules enunciated therein
12.5.3 The crime created in section 1 of Act 1 of 1988
12.6 Intoxication and culpable homicide
12.7 The effect of intoxication on punishment
12.8 Study hint
12.9 The effect of provocation on criminal liability
Glossary
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the effect of intoxication on the liability of an
accused by expressing an informed opinion on whether an accused, who had been
intoxicated at the time of the commission of a crime, should be convicted of
– the crime with which she is charged (or an implied alternative)
– contravention of section 1 of Act 1 of 1988
• demonstrate your understanding of the effect of provocation on liability by expressing
an informed opinion on the question whether an accused who had committed crimes
involving the assault or killing of another human being, can rely on provocation as an
excuse
160
12.1 BACKGROUND
The effect of intoxication, as well as of provocation, on criminal liability is discussed in this
study unit. Intoxication and provocation may play a role in respect of the following elements
or requirements of the crime: a voluntary act; criminal capacity; intention and negligence.
It is important that you understand these concepts well before you start to study this study
unit. We will first discuss in detail the effect of intoxication on criminal liability.
694
12.2 INTRODUCTION
It is well known that the consumption of alcohol may detrimentally affect a person's capacity to control her muscular movements, to appreciate the nature and consequences of her
conduct, as well as its wrongfulness, and to resist the temptation to commit wrongful acts.
It may induce conditions such as impulsiveness, diminished self-criticism, an overestimation
of her abilities and an underestimation of dangers. It may also result in a person being unaware of circumstances or consequences that she would have been aware of had she been
sober. What is the effect, if any, of intoxication on criminal liability? What we have said here
regarding intoxication resulting from the consumption of alcohol or liquor applies equally to
intoxication resulting from the use of drugs, such as dagga or opium. The effect of intoxication on liability is discussed in Criminal Law 192-204 and in the Reader 71-74.
695
The discussion of the defence of intoxication that follows can be subdivided as shown in the
following diagram. The last form of intoxication described in the diagram, namely remaining
instances of voluntary intoxication, requires a fairly long discussion. A summary of the effect
of this form of intoxication will be given to you at the end of the study unit.
696
12.3 INVOLUNTARY INTOXICATION
It is necessary, firstly, to distinguish between voluntary and involuntary intoxication. By
"involuntary intoxication", we mean intoxication brought about without X's conscious and
free intervention, as in the following examples: X is forced to drink alcohol against her will;
or X's friend, Y, without X's knowledge, pours alcohol or a drug into X's coffee, which results
in X becoming intoxicated and committing a crime while thus intoxicated (as happened in
697
161
CRW2601/1
Hartyani 1980 (3) SA 613 (T)). It is beyond dispute that involuntary intoxication is a complete
defence. The reason for this is that X could not have prevented the intoxication, and therefore
cannot be blamed for it.
12.4 VOLUNTARY INTOXICATION
As far as voluntary intoxication is concerned, three different situations have to be clearly
distinguished:
698
1. the actio libera in causa
2. intoxication resulting in mental illness
3. the remaining instances of voluntary intoxication
12.4.1 Actio libera in causa
The first situation is where X intends to commit a crime, but does not have the courage to
do so, and takes to drink in order to generate the necessary courage, knowing that she will
be able to perpetrate the crime once she is intoxicated. In this instance, intoxication is no
defence whatsoever; in actual fact, it would be a ground for imposing a heavier sentence
than normal. At the stage when the person was completely sober, she already had the necessary culpability. The person's inebriated body later merely becomes an instrument used for
the purpose of committing the crime. This factual situation – which is difficult to prove – is
known as actio libera in causa.
699
12.4.2 Intoxication resulting in mental illness
Secondly, certain manifestations of mental illness, such as delirium tremens, can be the result
of a chronic abuse of alcohol. If the consumption of alcohol results in mental illness or mental
defect, the ordinary rules regarding mental illness set out above must be followed. X is acquitted in terms of section 78(6) of the Criminal Procedure Act, owing to lack of criminal capacity.
The court may issue one of several orders, including that X be admitted to, and detained in, an
institution for the purpose of treatment. (For a discussion of this topic, see study unit 8 above.)
700
The two instances of voluntary intoxication discussed above, as well as involuntary intoxication, are seldom encountered in practice. The rules applicable to these forms of intoxication,
as stated above, are generally not disputed.
701
12.4.3 Remaining instances of voluntary intoxication
1. General
We now take a look at the third instance of voluntary intoxication. This is the instance where
alcohol is taken voluntarily, does not result in mental illness, and where X does not partake of
the alcohol with the exclusive purpose of generating the courage to perpetrate a crime. The
vast majority of cases where intoxication comes into the picture in the daily practice of our
courts can be categorised under this third instance of voluntary intoxication. The controversy
concerning the role of intoxication in criminal law has to do with these cases primarily. Unless
otherwise indicated, all references to intoxication hereafter are references to intoxication in
this category. It is this type of intoxication with which the courts are confronted daily. For
example, X has a couple of drinks at a social gathering and then behaves differently from the
way she would have behaved had she not taken any liquor: she takes offence too readily at
a rude remark made by Y and then assaults Y, or damages property.
702
162
2. The "lenient" and "unyielding" approach to voluntary intoxication
Throughout the years, there have been two opposing schools of thought regarding the
effect that intoxication ought to have on criminal liability. On the one hand, there is the approach that may be described as the unyielding one, which holds that the community will
not accept a situation in which a person who was sober when she committed a criminal act
is punished for that act, whereas the same criminal act committed by someone who was
drunk is excused merely because she was drunk when she committed the act. This would
mean that intoxicated people are treated more leniently than sober people.
703
On the other hand, there is the lenient approach, which holds that if we apply the ordinary
principles of liability to the conduct of an intoxicated person, there may be situations in
which such a person should escape criminal liability, the basis of this being that because of
her intoxication, she either did not perform a voluntary act or lacked either criminal capacity
or the intention required for a conviction.
704
In the course of our legal history, the approach towards the effect of intoxication has vacillated. Initially, in our common law, the rule was that voluntary intoxication could never be a
defence to a criminal charge, but could, at most, amount to a ground for the mitigation of
punishment. This is the unyielding approach.
705
However, the pendulum has gradually swung away from the unyielding approach adopted
in the common law towards the lenient approach, and throughout the twentieth century,
right up until 1981, the courts applied a set of rules that enabled them to reach a conclusion somewhere in the middle, that is, between the unyielding and the lenient approach
(see the discussion hereafter of the law prior to 1981). However, with the 1981 Appeal Court
decision in Chretien 1981 (1) SA 1097 (A), the pendulum clearly swung in the direction of the
lenient approach. This created the fear that intoxicated persons might too easily escape
conviction, which, in turn, led to legislation in 1988 aimed at curbing the lenient approach
towards intoxicated persons. At present, the pendulum is poised, somewhat awkwardly
halfway between the lenient and the unyielding approach, owing to, inter alia, uncertainty
regarding the interpretation of the 1988 legislation.
706
12.5 DEVELOPMENT OF THE DEFENCE OF VOLUNTARY
INTOXICATION
As this topic deals with the development of a defence, the chronological sequence of
decided cases and of legislation is important.
707
12.5.1 The law before 1981
For a clear picture of the role of intoxication in criminal liability, it is necessary to take a brief
look at what the law on this subject was in the course of the twentieth century, prior to 1981.
During this time, intoxication was never a complete defence, that is, a defence that could
lead to a complete acquittal.
708
The courts used the so-called specific intent theory. According to this theory, crimes could
be divided into two groups: those requiring a "specific intent" and those requiring only an
"ordinary intent". Examples of the first-mentioned group were murder and assault with
intent to do grievous bodily harm. The theory entailed the following: If X was charged with
a crime requiring a "specific intent", the effect of intoxication was to exclude the "specific
709
163
CRW2601/1
intent". She could then not be convicted of the "specific intent" crime with which she was
charged, but only of a less serious crime, including one in respect of which only an "ordinary
intent" was required. Somebody charged with murder could, as a result of her intoxication,
be convicted of culpable homicide only. Somebody charged with assault with intent to do
grievous bodily harm could, as a result of intoxication, be convicted of ordinary assault only
(Tsotsotso 1976 (1) SA 364 (O)).
The "specific intent theory" has been criticised on a number of grounds. It was argued that
it is incorrect to assume that intoxication can exclude a "specific intent", but not an "ordinary
intent": if X was so drunk that she could not form a "specific intent", how is it possible that
she could form any intent whatsoever?
710
12.5.2 The law after 1981 – the decision in Chretien and the rules enunciated
therein
Read
Read the aforementioned decision in the Reader: Chretien 1981 (1) SA
1097 (A).
The Chretien case. For a description of the facts, see the discussion of this case in the text, the prescribed
book (Criminal Law 224-226) and the Reader (71-74).
The legal position as set out above was drastically changed by Chretien 1981 (1) SA 1097 (A).
In this case, X, who was intoxicated, drove his motor vehicle into a group of people standing in the street. As a result, one person died and five people were injured. He was charged
with murder in respect of the person who died and attempted murder in respect of the five
persons injured. The court found that owing to his consumption of alcohol, X expected the
people in the street to see his car approaching and move out of the way, and that, therefore,
he had no intent to drive into them. On the charge of murder, he was convicted of culpable
homicide, because the intention to kill had been lacking.
711
X could not be found guilty on any of the charges of attempted murder owing to the finding
that he did not have any intent to kill. The question arose, however, whether X should not
have been found guilty of common assault on the charges of attempted murder. The trial
court acquitted him on these charges. The state appealed to the Appellate Division on the
712
164
ground that the trial court had interpreted the law incorrectly and that it should have found
the accused guilty of assault. The Appeal Court found that the trial court's decision was correct.
Summary of legal points decided by Appellate Division (Rumpff CJ) in Chretien:
1. If a person is so drunk that her muscular movements are involuntary, there can be
no question of an act, and although the state in which she finds herself can be
attributed to an excessive intake of alcohol, she cannot be found guilty of a crime as
a result of such muscular movements.
2. In exceptional cases, a person can, as a result of the excessive intake of alcohol,
completely lack criminal capacity and, as a result, not be criminally liable at all. This
will be the case if she is "so intoxicated that she is not aware that what she is doing is
unlawful, or that her inhibitions have substantially fallen apart".
3. The "specific intent theory" in connection with intoxication is unacceptable and must
be rejected. It is precisely because of the rejection of this theory that, in this case, X
could not even be convicted of common assault. Intoxication can therefore even exclude
X's intention to commit the less serious crime, namely assault.
4. Chief Justice Rumpff went out of his way to emphasise that a court must not lightly
infer that owing to intoxication, X acted involuntarily or lacked criminal capacity or the
required intention, since this would discredit the administration of justice.
Lastly, as far as Chretien is concerned, it must be emphasised that the rules discussed above
regarding involuntary intoxication, actio libera in causa and intoxication resulting in mental
illness were not altered in any way by this judgment.
The result of Chretien is that, as far as X's liability is concerned, intoxication may have one
of the following three effects:
713
1. It may mean that the requirement of a voluntary act was not complied with.
2. It may exclude criminal capacity.
3. It may exclude intention.
The first-mentioned effect (the exclusion of the act) merely has theoretical significance: Such
cases are hardly ever encountered in practice. If it should occur in practice, it would mean
that X had acted in a state of automatism.
714
The second effect may occur in practice, although a court will not readily find that X lacked
criminal capacity owing to intoxication – especially in the absence of expert evidence (cf
September 1996 (1) SACR 325 (A) 332).
715
If X does succeed with a defence of intoxication, in practice this usually means that a court
decides that, owing to intoxication, she lacked intention. (Intoxication may, of course, also
have a fourth effect, namely to serve as a ground for mitigation of punishment; this effect,
however, does not refer to X's liability for the crime. We will discuss the effect of intoxication
on the measure of punishment at a later stage.)
716
12.5.3 The crime created in section 1 of Act 1 of 1988
1. Reason for legislation
It was pointed out above that the decision in Chretien resulted in intoxication qualifying
as a complete defence. This judgment has been criticised. The criticism is that society does
not accept a situation where a sober person is punished for criminal conduct, whereas the
717
165
CRW2601/1
same conduct committed by a drunk person is pardoned, merely because she was drunk.
This would mean that drunk people are treated more leniently than sober people. Society
demands that drunk people not be allowed to hide behind their intoxication in order to
escape the clutches of the criminal law.
Reacting to this criticism of the judgment, parliament, in the first Act it passed in 1988, enacted
a provision that was clearly aimed at preventing a person raising the defence of intoxication
from walking out of court a free person too readily. This provision is contained in section 1
of the Criminal Law Amendment Act 1 of 1988.
718
2. Different degrees of intoxication
Section 1 of the Act is not easy to understand when you read it for the first time. In order to
understand the section properly, it is necessary, at the outset, to emphasise an important
aspect of the defence of intoxication, namely that there are different degrees of intoxication.
For the purposes of criminal law, we can distinguish the following degrees of intoxication:
719
a.
The least intensive of the three degrees of intoxication is intoxication that has the
effect of excluding the intention required for a conviction. In those instances, the
intoxication was not sufficiently serious to render X's act involuntary or to exclude
X's criminal capacity, but serious enough to exclude her intention. (This effect of
intoxication is relevant only in crimes requiring intention.)
b.
The next degree of intoxication is of a more serious nature than the intoxication
described above. It refers to the situation where X is so intoxicated that she lacks
criminal capacity. The intoxication was not of a sufficiently serious degree to
render her act involuntary. On the other hand, the degree of intoxication was sufficient to exclude her criminal capacity, and not merely her intention.
c.
The strongest degree of intoxication is when X is so intoxicated that she is not
even capable of performing a voluntary act.
Imagine a meter, which, like a speedometer on the dashboard of a motorcar, gives a reading
of the degree of intoxication of an accused charged with a crime requiring intention. Such a
meter would look something like the following:
720
The strongest degree of intoxication is the one on the right of the meter, and the slightest
degree is the one depicted on the left of the meter. The more drunk a person is, the more
the needle of the instrument will move to the right. Conversely, the less drunk a person is,
the more the needle will move towards the left.
721
166
The judgment in Chretien means that if X is charged with having committed a crime requiring intention, and she relies on intoxication as a defence, the defence must succeed,
irrespective of whether she falls in category (a), (b) or (c). When the legislature drew up the
legislation currently under discussion, it had to decide the extent to which the law ought to
be amended: should it be amended to the extent that accused falling in all three categories
henceforth be punishable, or should it be amended to the extent that only accused falling
in certain of these categories henceforth be punishable? We will now focus on the wording
of section 1 of the Criminal Law Amendment Act, 1988. Read the wording of section 1 very
attentively. See if you can find out from the wording of the section which of the degrees (or
categories) of intoxication the legislature decided to make punishable. We will return to this
question in point (4) below.
722
3. Wording of section 1
The precise wording of section 1 of the Act is as follows:
723
1. Any person who consumes or uses any substance which impairs his or her faculties
to appreciate the wrongfulness of his or her acts or to act in accordance with that
appreciation, while knowing that such substance has that effect, and who while such
faculties are thus impaired commits any act prohibited by law under any penalty, but is
not criminally liable because his or her faculties were impaired as aforesaid, shall be guilty
of an offence and shall be liable on conviction to the penalty which may be imposed in
respect of the commission of that act.
2. If in any prosecution for any offence it is found that the accused is not criminally liable
for the offence charged on account of the fact that his faculties referred to in subsection
(1) were impaired by the consumption or use of any substance, such accused may be
found guilty of a contravention of subsection (1), if the evidence proves the commission
of such contravention.
Owing to the rather complicated wording of this section, we do not expect you to be able
to state the precise wording of the section in the examination. However, you must be able
to formulate the simplified version of the section, as set out below in point (5). This
version appears below in a block against a grey background.
724
4. Effect of section 1 on the judgment in Chretien
The wording of section 1 is quite a mouthful. As you have seen in point (1) above, section 1
was enacted in reaction to the judgment in Chretien in order to prevent a person who raises
the defence of intoxication from walking out of court a free person too readily. Could you,
from the wording of the section, figure out which of the categories of intoxication section
1 is punishable?
725
If you carefully analyse the wording of section 1, it becomes clear that section 1 is aimed at
holding certain persons who, in terms of the judgment in Chretien are not criminally liable,
liable for contravention of the offence created in section 1(1). These are persons whose faculties were affected when they consumed an intoxicating substance, such as alcohol, and
were not able to appreciate the wrongfulness of their acts or to act in accordance with
that appreciation. Does the phrase in bold ring a bell? It virtually amounts to a definition
of the abilities that come to the fore when discussing criminal capacity. Section 1 therefore
clearly applies to the situation where intoxication (or the consumption or use of another
substance) has the effect of excluding a person's criminal capacity – in other words, to the
instances that fall under category (b) above.
726
167
CRW2601/1
What about those instances that fall under category (c) above – in other words, those persons who, as a result of intoxication, are unable to perform a voluntary act? Although
section 1 does not expressly refer to such instances, it does apply to such cases. As we have
seen, intoxication that has the effect of rendering a person's conduct involuntary amounts
to a more severe degree of intoxication than intoxication that has the effect of excluding a
person's criminal capacity. A person who is intoxicated to such an extent that she acts in an
involuntary manner will also lack criminal capacity – and if she lacks criminal capacity,
section 1 applies.
727
In Chretien, intoxication had the effect of excluding X's intention. X therefore fell under category (a). Can a person such as Chretien, who acted in a voluntary manner and had criminal
capacity, but whose intention was excluded owing to intoxication, be convicted of contravening section 1? The answer to this question is "no". There is nothing in the provision to
suggest that a person who falls under category (a) can be convicted of the statutory offence.
Section 1 merely refers to "faculties", and the question whether there was intention (including awareness of unlawfulness) does not centre on X's faculties, but on her knowledge. The
legislature therefore decided that accused persons who, at the time of the commission of
the act, fell only under category (a) should not be punished. Accused persons falling under
this category therefore retain the defence that intoxication affords them and are still, as was
the case in Chretien, acquitted of any crime requiring intention.
728
Consider again the case of Maarohanye discussed in 9.4.3 (dolus eventualis). Do you think X
and Y could nevertheless be convicted of section 1 in respect of the charge of attempted
murder for maiming two pedestrians? The answer is “no”. In the Maarohanye case, the state
had proved that the drunken drivers had criminal capacity. The crucial question was whether
they had dolus eventualis. They were acquitted of attempted murder since the court found
that the effect of the drugs resulted in them lacking the element of intention (dolus eventualis).
There is no crime such as negligent attempted murder. They could also not be convicted of
a contravention of section 1 since it is required, for a conviction of this statutory crime, that
they be acquitted of the crime charged (attempted murder) on the basis that they had
lacked criminal capacity, which was not the case.
729
In deciding which categories of intoxication should be made punishable, the legislature drew
a clear boundary between categories (a) and (b). In the above illustration of the meter, the
needle of the meter points exactly to where this boundary is situated.
730
5. Simplified version of contents of section
You now know that in terms of the judgment in Chretien, intoxication may, in some instances
(namely in categories (a), (b) and (c)), be a complete defence. You also know that the legislature
was unhappy with this state of affairs and, therefore, enacted section 1 of the Criminal Law
Amendment Act, 1988, in reaction to the judgment in Chretien. You have already studied
the exact wording of section 1. You now know that section 1 applies only to categories (b)
and (c). We will now look at precisely what provision the legislature made in order to hold
persons falling under categories (b) and (c) liable for the acts they committed in a state of
intoxication.
731
732
The following is a simplified version of the contents of section 1:
168
If X commits an act that would otherwise have amounted to the commission of a crime
(i.e. which, "viewed from the outside", without taking into account X's subjective mental
predisposition, would have amounted to the commission of a crime), but the evidence brings
to light that, at the time of the performance of the act, she was, in fact, so intoxicated that
she lacked criminal capacity, the court would, in terms of the Chretien judgment, first
have to find her not guilty of the crime with which she has been charged (i.e. the crime she
would have committed, had she not been drunk), but must then, nevertheless, convict her
of the statutory crime created in section 1(1), that is, the crime known as "contravention
of section 1(1) of Act 1 of 1988". In other words, she is convicted of a crime, albeit not the
same one as the one she had been charged with initially.
The section further provides that when the court has to decide what punishment to
impose for the statutory crime of which she had been convicted, the court is empowered
to impose the same punishment it would have imposed had she been convicted of the
crime she was originally charged with. In this way she is prevented from "walking out of
court" unpunished.
Let's consider a practical EXAMPLE X is charged with having assaulted Y. The evidence reveals
that, although she had hit Y in the face with her fists, she was so intoxicated when she struck Y
that she lacked criminal capacity. Consequently, the court must do the following: They must
find X not guilty of assault, but guilty of another crime, namely "contravention of section
1(1) of Act 1 of 1988". The punishment the court then imposes for this crime will be the
same as the punishment the court would have imposed had it convicted her of assault. Also,
if X is charged with culpable homicide and acquitted on the basis that she lacked criminal
capacity at the time of the commission of the offence, she must be found not guilty of
culpable homicide, but guilty of a contravention of section 1(1) of Act 1 of 1988.
6. Elements of crime created in section
We will now proceed to a discussion of the elements or requirements of this statutory crime.
In order to follow the discussion, it will be necessary for you to consult the precise wording
of the section (see point (3) above).
733
The requirements for a conviction of contravening the section can be divided into two groups.
The first group (indicated below by the letter A) refers to the circumstances surrounding the
consumption of the liquor, which is the event that takes place first. This group of requirements comprises the following:
734
A1
A2
A3
A4
735
736
737
738
the consumption or use by X
of "any substance"
that impairs her faculties to such an extent that she lacks criminal capacity
while she knows that the substance has that effect
The second group of requirements (indicated below by the letter B) refers to the circumstances
surrounding the commission of the act "prohibited ... under penalty", which is the event that
takes place secondly. This group of requirements comprises the following:
739
B1
B2
B3
740
741
742
the commission by X of an act prohibited under penalty
while she lacks criminal capacity and
who, because of the absence of criminal capacity, is not criminally liable
169
CRW2601/1
We expect you to be able to state these seven requirements (A1-4 plus B1-3) in
the examination.
7. Discussion of elements of statutory crime
a. The section is worded in such a way that it applies not only if X's mental abilities (or
"faculties") are affected by the consumption of alcoholic liquor, but also if these
abilities are affected by the use of drugs. This follows from the use of the words
"any substance" in section 1(1).
b.
The element of the crime identified above as A4 means that before a court convicts
X of contravening the section, it must be satisfied that X had consumed the liquor
or substance intentionally, that is, with knowledge of its effect.
c.
The section does not state explicitly that X should have consumed the substance
voluntarily. We are nevertheless of the opinion that the operation of the section
should be limited to cases in which X had consumed the substance voluntarily.
This follows from the background and purpose of the provision, as well as from
the unacceptable consequences that would flow from a contrary interpretation.
d.
The crime created in the section is very peculiar in the following respect: In order
to obtain a conviction of contravening the section, the state must prove that X
lacked criminal capacity at the time of the commission of the act. This is clear from
the element of the crime identified above as B2. What is peculiar is the following:
When charging a person with any crime, the state (barring a few exceptions, which
are not applicable here) must prove all the requirements of the crime in order to
secure a conviction. One of these requirements is that X had criminal capacity at
the time of the act. However, if the state (or state prosecutor) wishes to convince
the court that X committed a contravention of section 1(1), it must prove the precisely opposite, namely that X lacked criminal capacity at the time of the act.
The crime created in the section is therefore unique, because it is the only crime
in our law in which the absence of criminal capacity (instead of its presence) is
required for a conviction. In other words, this crime is an exception to the general
rule that requires that criminal capacity be a prerequisite for a conviction.
Consider again the case of Maarohanye discussed in 9.4.3 (dolus eventualis). Do
you think X and Y could nevertheless be convicted of section 1 in respect of the
charge of attempted murder for maiming two pedestrians? The answer is “no”. In
the Maarohanye case the state had proved that the drunken drivers had criminal
capacity. The crucial question was whether they had dolus eventualis. They were
acquitted of attempted murder since the court found that they had lacked dolus
eventualis. There is no crime such as negligent attempted murder. They could also
not be convicted of a contravention of section 1 since it is required, for a conviction
of this statutory crime, that they be acquitted of the crime charged (attempted
murder) on the basis that they had lacked criminal capacity, which was not
the case.
743
e.
Subsection (2) is more of procedural interest. The subsection amounts to the following: In order to secure a conviction of contravening the section, the state need
not necessarily charge X explicitly with contravening this section. Even if X has
been charged only with assault, for example, and not also with contravention of
this section, she may still be convicted of contravening the section if the evidence
reveals that, at the time of the performance of the act, she was intoxicated to the
extent set out in the section.
170
The case of Ramdass 2017 (1) SACR 30 (KZD) illustrates the difficulty of proving a
contravention of the section. X, an unemployed 31-year-old male, was charged
with the murder of Y, his girlfriend who he was planning to marry. On the day of
Y's death, X, Y and Y’s mother went shopping where after they (Y and her mother)
dropped X off at a tavern, and went home. X returned home in a state of intoxication, and he and Y then went out probably to buy drugs. The mother then went
out to a casino. When she returned she found her daughter, Y, lying with a plastic
bag over her head, already dead. X was found the next day, still smelling of liquor,
disorientated, and seemingly unaware of what had happened. When he was told
of her death, his reaction was to give himself up to the police (para [10]).
744
At the trial, the evidence revealed that X was a loving and caring person. There
was also no evidence that there was any argument before the mother left the
house. The court stated that there was need for caution to find too readily that a
person lacked criminal capacity as a result of intoxication, as this may bring the
administration of justice into disrepute (para [29]). However, in this particular case,
it found that there was a reasonable doubt as to X's criminal capacity, and that he
had to get the benefit of that doubt (para [29]). In the court's view, X had established a sufficient foundation for his defence of lack of criminal capacity namely,
that he had consumed alcohol and smoked crack cocaine, and that what he did
was completely out of character (para [30]). As pointed out by the court, X could
also not be convicted of culpable homicide since criminal capacity is a requirement
for culpable homicide as well.
745
The court then considered whether X could be convicted of a contravention of
section 1 of the Criminal Law Amendment Act 1 of 1988. The court indicated that
the difficulty was the requirement that the accused must have been so drunk that
he lacked criminal capacity (para [33]). Where an accused was acquitted on the
basis that there was a reasonable possibility that he was so drunk that he lacked
criminal capacity, he could not be convicted of the statutory offence unless the
court could find beyond reasonable doubt that he did not have such a capacity.
The court pointed out that this dilemma of the prosecution has been pointed
out by courts and academic writers and that it was up to the legislature to decide
whether the statute should be amended (para [33]). X was accordingly acquitted.
746
12.6 INTOXICATION AND CULPABLE HOMICIDE
If X, who is charged with murder, raises as a defence the fact that she was intoxicated, she can,
in terms of the judgment in Chretien, be acquitted on the murder charge (because intoxication negates the required intent), but may nevertheless be found guilty of culpable homicide
if the court finds that she had criminal capacity at the time of the commission of the
offence and that she was also negligent. This is because the test for negligence is objective
(namely how the reasonable person would have acted) and because the reasonable person
would not have consumed an excessive amount of alcohol. This end result (namely a conviction of culpable homicide) can be reached without making use of the "specific intent" theory.
747
171
CRW2601/1
12.7 THE EFFECT OF INTOXICATION ON PUNISHMENT
In all the instances where X, notwithstanding her intoxication, is found guilty of the crime
she is charged with, the intoxication can be taken into account by the court in sentencing
her, resulting in a more lenient punishment. This is a daily practice in our courts. Intoxication cannot, however, result in a more lenient punishment in the case of a crime in which
intoxication is an element of the crime, such as driving a motorcar under the influence of
liquor (Kelder 1967 (2) SA 44 (T)).
748
Nothing prohibits a court from using intoxication as a ground for imposing a heavier punishment in certain circumstances, for example, in the case of a person who knew, before she
started drinking, that alcohol made her aggressive (Ndlovu 1972 (3) SA 42 (N); s 2 of the Criminal
Law Amendment Act 1 of 1988). Where the form of culpability involved in the commission
of the offence is negligence, the fact that the negligence was induced by the voluntary consumption of alcohol or drugs will generally be regarded as an aggravating factor.
749
12.8 STUDY HINT
Hint
Experience has taught us that students often obtain poor marks when they have to answer
a question dealing with the defence of intoxication in the examination. We have therefore
decided to give you a few study hints on how to answer a question in the examination
that deals with this topic.
Students are often (although not always) required to discuss the present legal rules relating
to the defence of voluntary intoxication, or to apply the rules relating to this defence to a
concrete set of facts. It is, after all, this form of intoxication that arises in almost ninety-nine
per cent of cases in which intoxication is raised as a defence.
750
If you are required to answer a question on the defence of voluntary intoxication in the
examination, don't waste time on irrelevant matters. Topics that are irrelevant in this regard
include the rules relating to involuntary intoxication, actio libera in causa, intoxication resulting
in mental illness, the specific intent theory (which applied before 1981, but was abolished in
that year by the Appellate Division) and a discussion of the lenient and unyielding approaches
to the defence of voluntary intoxication.
751
Instead of discussing these irrelevant topics, you should begin your answer with a reference
to and a discussion of the Chretien decision; briefly describe what was decided in this case,
and how the principles enunciated in this case were affected by section 1 of Act 1 of 1988.
If you are required to apply the existing law to a given set of facts, you ought to be able to
do this relatively easily by merely applying the rules that are currently applicable in our law,
as summarised above under 12.5.2 and 12.5.3.
752
However, in your examination preparation, you cannot afford to ignore the rules regarding
involuntary intoxication, actio libera in causa, intoxication that results in mental illness, the
specific intent theory and the lenient and unyielding approaches, since we may ask questions on these topics, such as "Discuss the meaning of the expression actio libera in causa".
As a general rule, you ought to refer to these topics only when specifically required to do so.
753
172
Activity 12.1
X and Z visit a bar and consume a number of drinks. Upon leaving the bar, pedestrian
Y accidentally bumps against X, who by this stage is swaying on the sidewalk. A fight
ensues. X holds onto Y from behind and Z kills Y by stabbing her with a knife. X and Z are
charged with the murder of Y. The court finds that X and Z have caused Y's death unlawfully, but that X was so intoxicated during the fight that she was unable to distinguish
between right and wrong. The court further finds that at the time of the assault upon Y,
Z was able to act and that she had criminal capacity, but that she was so intoxicated that
she lacked the intention to murder Y. X and Z rely on the defence of intoxication. Discuss
critically whether X and Z ought to succeed with this defence.
15
Feedback
The rules currently applicable to the defence of voluntary intoxication are those enunciated
in Chretien, as well as the provisions of section 1 of Act 1 of 1988. The facts in Chretien's
case were briefly as follows: (you can mention the facts in this case briefly). The four basic
principles enunciated by the Appellate Division are in the case as follows: (mention the four
principles set out above under 12.5.2.)
The conclusion reached in Chretien was criticised because the effect of the decision was
that a person who was responsible for her own intoxication is treated more leniently than a
sober person who had committed the same act. As a result of this criticism, section 1 of Act
1 of 1988 was enacted. This section provides briefly as follows: (briefly set out the contents
of the section).
The application of the rules laid down in Chretien and in the Act on the present set of facts
is as follows: The fact that X was not able to distinguish between right and wrong means
that she did not have criminal capacity as a result of the intoxication. In terms of Chretien,
criminal incapacity, even if it was the result of intoxication, constitutes a defence. However,
the effect of the provisions of section 1 of Act 1 of 1988 is that X will be convicted of the crime
created by this section.
Z acted with criminal capacity but did not have the intention to murder. Accordingly, Z
cannot be convicted of murder or of a contravention of section 1 of Act 1 of 1988. She can,
however, be convicted of culpable homicide, as she caused Y's death negligently. The test
for negligence is objective, that is: How would the reasonable person in Z's position have
acted? Such a person would have foreseen that her act would result in death.
Please note that although it was not mentioned specifically in the question that X and
Z started to drink voluntarily, and although it was not mentioned expressly that they
had not started drinking with the exclusive aim of gaining courage, it can nevertheless be assumed that they started drinking voluntarily, and that this was not a case of
actio libera in causa. These two situations are so extraordinary that, unless specifically
mentioned in the question, it can be assumed that the intoxication referred to in the
question does not refer to these situations.
173
CRW2601/1
12.9 THE EFFECT OF PROVOCATION ON CRIMINAL LIABILITY
(Criminal Law 204-208)
754
y Provocation is not a defence on a charge of murder. Provocation in fact confirms the
existence of intention. However, provocation may be relied upon as a ground for mitigation
of punishment. A court may find that X's responsibility was diminished in terms of section
78(7) of the Criminal Procedure Act 51 of 1977.
y If X is charged with culpable homicide, the provocation will exclude X's negligence only
if it is clear that a reasonable person would also have lost his temper and would also have
reacted in the way X did.
y If X is charged with assault with intention to do grievous bodily harm, provocation will
not lead to conviction of a lesser offence of assault.
y If X is charged with common assault, provocation cannot serve as a complete defence
leading to a complete acquittal. Again, provocation may serve as a ground for mitigation
of punishment.
GLOSSARY
actio libera in causa
755
the situation in which X intentionally drinks liquor or uses drugs
to generate enough courage to commit a crime
756
SUMMARY
758
As far as the effect of intoxication on criminal liability is concerned, the legal position at
present may be summarised as follows:
759
760
Facts
Legal consequences
761
X is so intoxicated that she is incapable
of committing a voluntary act – in other
words, her conduct takes place while she
is in a state of automatism resulting from
intoxication.
762
X is so intoxicated that she lacks criminal
capacity.
764
X is so intoxicated that she lacks the intention required for a conviction.
766
In terms of Chretien, X is not guilty of the
crime with which she is charged. She must,
however, be convicted of contravening section 1 of Act 1 of 1988.
763
Exactly the same as above.
765
In terms of Chretien, X is not guilty of the
crime with which she is charged, nor can
she be convicted of contravening section
1 of Act 1 of 1988. However, if X is charged
with murder and the court finds that she
had criminal capacity, she may, on the
ground of negligence, be found guilty of
culpable homicide (which is always a tacit
alternative charge to a charge of murder).
767
174
On a charge of having committed a crime
requiring negligence (e.g. culpable homicide), the evidence reveals that X was intoxicated when she committed the act.
768
Despite her consumption of liquor, X complies with all the requirements for liability,
including intention.
770
Intoxication does not exclude X's negligence; on the contrary, it serves as a ground
for a finding that X was negligent.
769
X is guilty of the crime with which she is
charged, but the measure of intoxication
may serve as a ground for the mitigation of
punishment. It may, however, also serve as
a ground for increasing a sentence as, for
example, in a case of a person who knew,
before she started drinking, that alcohol
makes her aggressive.
771
Further reading
For more information on intoxication and provocation, read:
• Burchell Principles of Criminal Law (2016) 307–326.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 185–201.
Self-assessment
12
(1) Discuss the Chretien case and indicate the possible effects that intoxication may have
on criminal liability in terms of this decision.
(2) Discuss the requirements of the crime created in section 1 of Act 1 of 1988 and explain
in which circumstances a person may be convicted of this offence.
(3) Discuss whether provocation may have an effect on criminal liability for the following
crimes: culpable homicide and common assault.
(4) X enters a room where he discovers Y having sexual intercourse with his wife. X is enraged and kills Y. On a charge of murder, discuss X's chances of success with a defence
of provocation.
175
CRW2601/1
LEARNING UNIT 13
Disregard of the requirement of culpability and the
criminal liability of corporate bodies
Contents
Learning outcomes
13.1 Disregard of the requirement of culpability
13.1.1 Background
13.1.2 Strict liability
13.1.3 Vicarious liability
13.2 Criminal liability of corporate bodies
13.2.1 Background
13.2.2 Liability of corporate body for the acts of its director or servant
13.2.3 Association of persons
13.2.4 Comments on current model of corporate liability
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• explain the concept of strict liability
• judge the merits of a situation in which a corporate body might be liable for the acts
of its director or servant
In this study unit we discuss two different topics, as indicated in the title of this study unit.
The two topics or subjects will be discussed separately.
773
176
You are not expected to study this study unit for examination purposes; just
read through the information. However, you may be assessed on the content in
assignments.
13.1 DISREGARD OF REQUIREMENT OF CULPABILITY
13.1.1 Background
The general rule is that culpability is a requirement for all crimes. However, there are certain
exceptions to this basic rule. In this study unit we will consider these exceptions, namely
774
1. the principle of strict liability in statutory crimes
2. vicarious liability
13.1.2 Strict liability
(Criminal Law 208-212)
775
13.1.2.1 General
Culpability is required for all common-law crimes. Bearing in mind the necessity of culpability
in a civilised legal system, it should also be a requirement for all statutory crimes. However,
this is not the case. The legislature sometimes creates crimes in respect of which culpability
is not required. Since culpability has become such a well-established principle of criminal
liability, we would be inclined to assume that it could only be excluded by an express provision in a law. However, owing to the influence of English law, our courts have adopted the
principle that even in those cases where the legislature, in creating a crime, is silent about
the requirement of culpability, a court is free to interpret the provision in such a way that no
culpability is required. It is in these cases that we can speak of strict liability. Strict liability
is found in statutory crimes only.
776
A statutory provision can expressly exclude the requirement of culpability. It can also expressly
include this requirement. This will be the case if the legislature employs words such as "intentionally", "maliciously", "knowingly" and "fraudulently". In the overwhelming majority of
cases in which the question arises whether liability is strict, the legislature has simply refrained
from making any mention of culpability; it is then the task of the courts to determine, in accordance with the principles of the interpretation of statutes, whether culpability is required.
777
13.1.2.2 Strict liability may be unconstitutional
There is a possibility that the courts may decide that the whole principle of strict liability is
unconstitutional (i.e. in conflict with the Bill of Rights enshrined in the Constitution). It may
be in conflict with the right to a fair trial (s 35(3)) and thereunder, especially the right to be
presumed innocent (s 35(3)(h)), as well as the right to freedom and security of the person (s
12(1)). Although this question has not yet come up directly for decision before the Constitutional Court, it did arise obiter (i.e. in passing) in Coetzee 1997 (1) SACR 379 (CC). One of the
judges in this case, O'Regan J, made it fairly clear in her judgment (442h--i) that strict liability may be unconstitutional on the ground that "people who are not at fault [i.e. who lack
culpability] should not be deprived of their freedom by the State ... Deprivation of liberty,
without established culpability, is a breach of this established rule".
778
177
CRW2601/1
13.1.3 Vicarious liability
(Criminal Law 212-213)
779
780
You must read the discussion of this topic in Criminal Law on your own.
13.2 CRIMINAL LIABILITY OF CORPORATE BODIES
It is not necessary to make an in-depth study of this topic, but if you are interested in
obtaining more information it, please consult Criminal Law 215-217 and Burchell supra
(458-470).
13.2.1 Background
The law distinguishes between a natural person, on the one hand, and a legal persona, juristic
person, corporation or corporate body, on the other. The latter is an abstract or fictitious body
of persons, an institution or entity that can also be the bearer of rights and duties, without
having a physical or visible body or a mind. Examples of corporate bodies are companies,
universities, banks, and so forth.
781
Some jurists are of the opinion that corporate bodies ought not to be criminally liable because they cannot act with culpability. They argue that only natural persons can act with a
blameworthy state of mind (such as intention). Since corporate bodies are not human beings,
but abstract entities without a "mind" of their own, they cannot, according to these jurists,
act with any state of mind. The jurists argue that to hold corporate bodies criminally liable
would amount to a form of liability without any culpability. However, in South Africa, as in
the vast majority of other countries, corporate bodies may indeed incur criminal liability.
This whole topic is governed by section 332 of the Criminal Procedure Act 51 of 1977, which
expressly provides for the criminal liability of a corporate body.
782
13.2.2 Liability of corporate body for the acts of its director or servant
Section 332(1) provides that an act by the director or servant of a corporate body is deemed
to be an act of the corporate body itself, provided the act was performed in exercising powers or in the performance of duties as a director or servant, or if the director or servant was
furthering or endeavouring to further the interests of the corporate body. A corporate body
can commit both common-law and statutory crimes, irrespective of whether intention or
negligence is the form of culpability required (Ex parte Minister van Justisie: in re S v SAUK 1992
(4) SA 804 (A)). This does not mean that the "original culprit", that is, the employee or servant,
is exempt from liability. He is just as punishable as the corporate body.
783
784
The following are EXAMPLES of the application of this section:
1. In Joseph Mtshumayeli (Pty) Ltd 1971 (1) SA 33 (RA), A was a transport company and B a
bus driver employed by A. B caused an accident by allowing a passenger to drive the bus.
Both A and B were convicted of culpable homicide.
2. Company A's director, B, in an attempt to eliminate competition with her company, steals
valuable diagrams from the office of company Y. Both A and B are guilty of theft.
3. Company A's director, B, murders the managing director of company Y in an attempt to
promote the interests of A. A and B are both guilty of murder.
178
13.2.3 Association of persons
Section 332(7) contains provisions that render members of an association of persons, other
than a corporate body (the so-called voluntary association, such as a tennis club or debating
society), criminally liable for crimes committed by other members. Beyleveld 1964 (2) 269 (T)
affords an example of a conviction under this subsection.
785
13.2.4 Comments on current model of corporate liability
The South African model of corporate criminal liability has been criticised for being outdated
and in need of reform because it makes the liability of the corporation dependent upon
the liability of its director or servant. Therefore, a corporation can be held liable for a crime
(e.g. culpable homicide) committed by an employee, even if it did everything reasonably
possible to prevent such a crime from occurring. On the other hand, a corporation may go
scot-free if an individual employee or director of the corporation is acquitted because he
lacked culpability, even if the institutional practices of the corporation itself were lacking in
the extreme. In various other legal systems, reform has been undertaken in terms of which
corporations can be held liable directly for crimes such as culpable homicide on the basis of
"organisational fault" or "collective fault". Culpability is then proved by focusing on whether
the institutional practices, culture and policies of a corporation were of such a nature that
they allowed criminal conduct to occur.
786
SUMMARY
Strict liability
1. Strict liability is a form of liability dispensing with the requirement of culpability. It is found
only in certain statutory crimes, never in common-law crimes.
2. The legislature sometimes creates crimes in respect of which the requirement of culpability
is expressly excluded.
3. Even where the legislature, in creating a crime, is silent about the requirement of culpability,
a court is free to interpret the provision in such a way that no culpability is required.
787
Vicarious liability
1. In our law, a person may, in certain exceptional circumstances, be liable for a crime
committed by another person. This form of liability is known as vicarious liability. Vicarious
liability is possible only in statutory crimes.
2. A typical example of vicarious liability is where, in terms of a statute, an employer is held
liable for crimes committed by an employee in respect of acts performed by the employee
in the course of his employment.
788
Criminal liability of corporate bodies
1. The law distinguishes between a natural person and a corporate body. The latter is an
abstract body of persons that can also be the bearer of rights and duties. An example of
a corporate body is a company.
2. In South Africa, corporate bodies may be convicted of crimes.
3. The Criminal Procedure Act contains a provision in terms of which a corporate body may
be held criminally liable for the acts of its director or servant. This section is arguably in
need of reform.
789
179
CRW2601/1
Further reading
For more information on strict and vicarious liability, as well as the criminal liability of
corporate bodies, read:
• Burchell Principles of Criminal Law (2016) 449-470.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 233–239.
Self-assessment
13
(1) Explain the meaning of the term "strict liability".
(2) Explain the meaning of vicarious liability.
(3) Distinguish between a natural person and a corporate body, and name a few examples
of the latter category.
(4) Fill in the missing words:
Section 332(1) provides that an act by a director or servant of a corporate body is
deemed to be the act of the corporate body itself, provided the act was performed by
such a person ... or in the ... as a director or servant, or if the director or servant was ...
or ... the interests of the corporate body
(5) Can a corporate body be guilty only of a statutory crime?
(6) State in one paragraph why the current South African model of corporate criminal liability is criticised.
180
LEARNING UNIT 14
Participation I: introduction and perpetrators
Contents
Learning outcomes
14.1 Background
14.2 Introduction
14.2.1 Classification of persons involved in a crime
14.2.2 Definitions of a perpetrator and an accomplice
14.2.3 Distinction between perpetrator and accomplice explained
14.3 Perpetrators
14.3.1 Co-perpetrators: unnecessary to identify principal perpetrator
14.3.2 Co-perpetrators: difference between direct and indirect perpetrator is irrelevant for purposes of liability
14.3.3 Being a perpetrator of murder in terms of the general principles of liability
14.3.4 Being a perpetrator of murder by virtue of the doctrine of common purpose
14.3.5 Joining in
14.3.6 The most important principles relating to common purpose
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the principles relating to participation by
– distinguishing between a perpetrator and an accomplice
– expressing an informed opinion whether an accused can be held liable as a perpetrator, be it according to the general principles of criminal liability or by virtue
of the operation of the doctrine of common purpose
–
recognising a joining-in situation and determining the liability of the joiner-in
181
CRW2601/1
14.1 BACKGROUND
In the discussion thus far, we have assumed that only one person has acted. However, it is
well known that criminals do not always act alone, but often join forces with others. In this
study unit, we are going to set out the principles applicable where more than one person is
involved in the commission of a crime.
790
Consider the following set of facts: two people, whom we will call X and Z, decide to rob a
café. X walks into the café, threatens the owner with a revolver and, in this way, succeeds in
getting possession of the money in the till. Z never goes into the café, but stands guard outside,
in order to warn X, should she see the police coming. Nobody will deny that X has committed robbery. The question, however, is whether Z can also be convicted of the robbery. If Z
is charged with robbery, can she allege that she cannot be convicted of the crime because
she was never even inside the café, never handled the revolver and never even touched the
money? It is questions such as these that we will discuss in this study unit.
791
Since the subject of participation is too long to discuss in one study unit, we will spread it over
two study units. In this study unit, we will discuss the classification of the different persons
involved in a crime, as well as perpetrators. In the next study unit, we discuss accomplices
and accessories after the fact.
792
14.2 INTRODUCTION
14.2.1 Classification of persons involved in a crime
(Criminal Law 219-221)
793
We begin by classifying into various categories those persons who may be involved with, or
implicated in, the commission of a crime. We will first set out the classification in a diagram
and then discuss the different categories of persons.
794
182
795
The term "persons involved in a crime" is used as a general, collective denominator for all
the persons, or groups of persons, involved in the commission of the crime (whether they
furthered the commission of the crime or not) and who, consequently, can be charged in
connection with the commission of the crime. "Person involved in a crime" is not a legal term.
No-one is charged or convicted as a "person involved" in the commission of a crime. It is merely
a convenient term that we use to explain our classification of criminals into different groups.
796
Persons involved in the crime can be subdivided into two broad categories, namely persons
who participate and persons who do not participate. A person involved who participates is
briefly described as a "participant".
797
A participant is anyone who does something, in whatever manner, whereby she furthers the commission of the crime. On the other hand, a person involved who does
not participate is someone who, although she can be described as being involved in
the crime, does not further the commission of the crime at all.
There is only one group of persons that will fall into this category, namely accessories after
the fact. An accessory after the fact is someone who, after the crime has already been completed, learns about the crime for the first time and then does something to protect the
perpetrators of the crime or to help them to escape criminal liability for their acts. The best
example of an accessory after the fact is the person who, after a murder has been committed, helps the murderers to dispose of the body by, for instance, throwing it in a river with a
stone tied around its neck. An accessory after the fact cannot be a participant because her
act does not amount to furthering the commission of the crime. After all, a person cannot
further a crime if the crime (e.g. the murder in the above-mentioned example) has already
been committed. In the next study unit, we will return to the accessory after the fact and will
deal with her liability in greater detail. First, however, we will consider the participant and
note the various kinds of participants.
798
The category of persons known as "participants" can, in turn, be divided into two subcategories, namely perpetrators and accomplices. The distinction between perpetrators and
accomplices is of the utmost importance, so you must ensure that you understand it properly.
799
183
CRW2601/1
14.2.2 Definitions of a perpetrator and an accomplice
800
Definition of a perpetrator
A person is a perpetrator if
1. her conduct, the circumstances in which it takes place (including, where relevant, a
particular description with which she as a person must, according to the definition
of the offence, comply) and the culpability with which it is carried out are such that
she satisfies all the requirements for liability contained in the definition of the offence,
OR
2. if, although her own conduct does not comply with that required in the definition of
the crime, she acted together with one or more persons and the conduct required
for a conviction is imputed to her by virtue of the principles relating to the doctrine
of common purpose.
Don't feel discouraged if you don't understand these definitions immediately. When reading
them for the first time, they will probably strike you as very complicated. However, as you
proceed with your study of this study unit, these definitions will become clearer. The doctrine
of common purpose mentioned in part (2) above will be discussed in some detail below. The
crucial words in the definition (i.e. the words that an examiner is always looking for when she
marks the examination papers) are:
801
in part (1):
conduct, circumstances and culpability ... satisfies all requirements in definition, and
in part (2):
imputed ... doctrine of common purpose.
802
803
804
805
Definition of an accomplice
A person is an accomplice if,
1. although she does not comply with all the requirements for liability set out in the
definition of the crime, and
2. although the conduct required for a conviction is not imputed to her in terms of the
doctrine of common purpose,
she engages in conduct whereby she unlawfully and intentionally furthers the commission
of the crime by somebody else.
The crucial words in this definition are: not comply with definitions, conduct not imputed
in terms of the doctrine of common purpose and furthers crime.
806
14.2.3 Distinction between perpetrator and accomplice explained
To determine whether someone is a perpetrator, you must first look at the definition of the
particular crime and, secondly, consider whether the accused's conduct, state of mind and
characteristics comply in all respects with the definition. Murder is the unlawful, intentional
causing of the death of another person and anyone who, in whatever manner, unlawfully
and intentionally causes the death of another person is a perpetrator of the crime of murder.
807
808
184
Some crimes can be committed only by people complying with a certain description. For
example, high treason can be committed only by a person owing allegiance to the Republic
of South Africa. A crime may also be defined in such a way that it can be committed only by
a person who has a certain occupation (e.g. a medical doctor) or only by somebody who is
the holder of a certain licence. What is the position if somebody does not comply with such
a description (i.e. to owe allegiance, to be a medical doctor or to be the holder of a certain
licence), but nevertheless commits an act whereby she furthers the commission of a crime
by somebody who does comply with such a description? The answer is that such a person
is an accomplice, for the following reason: because she does not comply with the particular
description, she cannot be brought within the definition of the crime, but she nevertheless commits an act whereby she furthers the commission of the crime by somebody else.
809
If a court convicts somebody of a crime without explicitly specifying that she is convicted of
being an accomplice to the crime, it normally means that she is convicted as a perpetrator
(or co-perpetrator).
810
14.3 PERPETRATORS
(Criminal Law 222-233)
811
14.3.1 Co-perpetrators: where there is more than one perpetrator, it is unnecessary to identify a principal perpetrator for the purposes of liability
We have seen that a person is a perpetrator if (briefly stated) she complies with all the requirements for liability in the definition of the crime, or if the act of somebody else who is a
perpetrator is imputed to her in terms of the common-purpose doctrine.
812
There is no rule in our law stipulating that where more than one person jointly commits a
crime, there can be only a single perpetrator, and that the others who aid in the commission
of the crime invariably belong to another category. Where there is more than one participant
or perpetrator, it is not always possible to select one as the principal offender. There is no
criterion by which we can satisfactorily identify such a principal offender in every case. In
certain cases, a principal offender may be identified, and such a person is then referred to
in our legal terminology as a principal offender, but the distinction between a principal
offender and other perpetrators is not important for the purposes of liability. (However, it
may be of great importance in the assessment of punishment.)
813
Where several persons commit a crime together, and their conduct, state of mind and characteristics all comply with the definition of the crime, each one of them is a co-perpetrator.
A co-perpetrator does not belong to any category other than that of a perpetrator. Two
persons may act in such a way that each contributes equally to the crime, such as where A
takes the victim by the arms, B takes him by the legs, and, together, they throw him over a
precipice. One co-perpetrator's contribution may be more or less than that of the other, such
as where A enters a house and shoots and kills Y, while B merely keeps guard outside the
house. (This happened in Bradbury 1967 (1) SA 387 (A).) Both are nevertheless co-perpetrators
in the commission of the murder if the conduct of both can be described as the unlawful,
intentional causing of the death. That one is a perpetrator in no way detracts from the fact
that the other is also a perpetrator.
814
185
CRW2601/1
14.3.2 Co-perpetrators: difference between direct and indirect perpetrator is
irrelevant for purposes of liability
Sometimes a distinction can be drawn between a direct and an indirect perpetrator.
815
y A direct perpetrator is a perpetrator who commits the crime with her own hands or body.
y An indirect perpetrator does not commit the crime with her body, but makes use of
somebody else to commit the crime.
For instance, X hires Z to murder Y. If Z executes the assignment and she herself fires the shot
at Y, killing Y, Z is the direct perpetrator, whereas X is the indirect perpetrator.
816
The distinction between a direct and an indirect perpetrator is of no significance for
the purposes of determining liability. Both X and Z in the above example are guilty of
murder as (co-)perpetrators, because the conduct of both falls within the definition of murder:
the conduct of both amounts to the (unlawful and intentional) causing of another's death. In
the eyes of the law, Z is nothing but an instrument by means of which X commits the crime.
817
In the examinations, students are sometimes asked to explain the difference between
a perpetrator and an accomplice. In answering this question, students often make the
mistake of writing that a perpetrator is a person who commits the crime with her own
hands, whereas an accomplice is somebody who does not commit the crime with
her own hands. Such a statement is wrong, because a person can be a perpetrator
even if she uses another person to do her "dirty work" for her, as explained in the above
example of the hired assassin.
14.3.3 Being a perpetrator of murder in terms of the general principles of
liability
It is clear from the above definition of a perpetrator that there are two possible grounds on
which a person may qualify as a perpetrator. The first ground is set out in part (1) and the
second, in part (2) of that definition. We will now consider the first ground. We may refer to
this first ground as "being a perpetrator in terms of the general principles of criminal liability" because the question here is merely whether X's act, the circumstances in which it takes
place and her culpability are such that they all comply with the definition of the crime. When
applying part (2) of the definition, which we will explain later, we actually apply a special,
additional doctrine, that is, a doctrine or rule additional to the ordinary principles of liability.
818
If two or more persons decide to murder Y, it is unnecessary, in order to hold all of them liable
as co-perpetrators, that each of them must have stabbed or shot Y. They do not even each
have to touch Y or be present at the scene of the murder. Being a perpetrator by applying the
ordinary principles of liability, X1 shoots and kills Y. X2 assists X1 by merely standing guard
(in other words, preventing others from hindering X1 in the execution of his evil deed). X3 is
behind the steering wheel of the "getaway car": he has transported X1 and X2 to the scene
of the crime and lets the car idle so that all three of them (X1, X2 and X3) can speed away as
fast as possible after the completion of the crime. All three can be convicted of murder by
merely applying the ordinary principles of criminal liability, as explained above.
819
186
14.3.4 Being a perpetrator of murder by virtue of the doctrine of common
purpose
(Criminal Law 232-233; Reader 114-142)
820
14.3.4.1
General
If a number of people acting together kill Y, it is often very difficult to find with certainty
that the acts committed by each of them contributed causally to Y's death. The facts may be
such that there is no doubt that at least one of the group, namely the one who actually shot
and killed Y, caused her death, but there are also situations in which not even the conduct
of a single one of the group can without doubt be described as a cause (at least in the sense
of conditio sine qua non) of Y's death. The latter situation occurs especially if there are many
people who together kill Y. It may then be difficult to base their liability for the joint murder
merely on an application of the general principles of liability. There is usually no difficulty
in finding that everybody's conduct was unlawful, and that each member of the group entertained the intention to kill. What is, however, often difficult to find is that the individual
conduct of each member satisfied the requirement of causation.
821
187
CRW2601/1
In order to overcome difficulties such as these, the courts apply a special doctrine to facilitate
the conviction of murder of each separate member of the group. This doctrine is known as
the doctrine of common purpose.
822
Definition of doctrine of common purpose
823
If two or more people, having a common purpose to commit a crime, act together
in order to achieve that purpose, the acts of each of them in the execution of such a
purpose are imputed to the others.
Although the doctrine is couched in general terms, in our law it has been applied mostly to
the crime of murder. The crucial requirement of the doctrine is that the different accused
should have had the same purpose. Once this is proven, the act of Z, who, for example, threw
a heavy stone at Y, which struck her on the head, is imputed to X, who had a common purpose
with Z to kill Y, but who threw a stone at Y, which missed her. In fact, Z's act is imputed to
everyone who had the same purpose as she did, and who actively associated herself with the
achievement of the common purpose, even though we cannot construe a causal connection
between such a party's act and Y's death. It is, however, only Z's act that is imputed to the
other party (X), not Z's culpability. X's liability is based upon her own culpability (Malinga
1963 (1) SA 692 (A) 694).
The common-purpose doctrine as applied to cases of murder may indeed be regarded as
nothing other than a mechanism applied to overcome the difficulties inherent in proving
causation where a number of people together kill somebody else. If it is possible to base
each participant's conviction of murder on an application of the general rules of liability
(and, more particularly, on the ordinary principles of causation), it is, in our view, preferable
to follow this option rather than resort to the common-purpose doctrine in order to secure
a conviction. The reason for this predilection is the fear expressed in certain quarters that
the latter doctrine, with its wide definition and scope, may, in certain circumstances, lead
to inequitable results, in that somebody who played only a comparatively minor role in the
events may also be convicted of murder (Mshumpa 2008 (1) SACR 126 (EC).
824
14.3.4.2
Proof of existence of common purpose
The existence of a common purpose between two or more participants is proved in the
following ways:
825
y On the basis of an express or implied prior agreement to commit an offence. Since people
mostly conspire in secret, it is very difficult for the state to prove a common purpose
based on a prior agreement. (See S v Mbanyaru 2009 (1) SACR 631 (C), where it was held
that common purpose based on prior agreement was not proved in this case.)
y Where no prior agreement can be proved, the liability arises from an active association
and participation in a common criminal design (Thebus 2003 (2) SACR 319 (CC) 336).
The concept of active association is very important. We will say more about this shortly.
826
14.3.4.3
Why it is necessary to have such a doctrine?
Is this doctrine really necessary? Is it not possible for our law to dispense with this doctrine?
The answer to the first question is "Yes", and to the second, "No". To prove the correctness of
these answers, we would like to discuss the following practical problem.
827
188
Why the common purpose doctrine is necessary? X1, X2, X3, X4 and X5 stone Y to death. See the discussion below.
Assume that a group of five people, whom we will refer to as X1, X2, X3, X4 and X5, throw
stones at Y. Y cannot run away from them, since he is trapped in a corner between two high
walls. All the assailants (X1 to X5) have the intention of killing Y. This can be gathered from the
fact that they shout loudly, within hearing distance of one another, "Kill him!" Some stones
strike Y and some miss him (see illustration.) Y dies as a result of the stoning. X1 to X5 are all
charged with having murdered Y. During the trial, it is impossible for the court to find which
of the accused persons threw stones that struck Y, and which of them threw stones that
missed Y, because the events took place very quickly. Stated differently, it is impossible for the
court to find beyond reasonable doubt that any of the accused threw a stone that struck Y.
828
Let's assume for a moment that the doctrine of common purpose did not exist. Would it
then have been possible for the court to convict any of the accused of murder? Certainly
not, because a court would then be able to convict an accused of murder only if it could be
proved that such accused threw a stone that, separately or together with other stones, struck
Y, with lethal consequences. However, the court finds it impossible to find beyond reasonable
doubt that any of the accused threw a stone that struck Y.
829
Let's proceed one step further. Let's assume that the events were filmed with a video camera
and that the slow-motion portrayal of the events shows that the stone thrown by X3 did
indeed strike Y, whereas the stone thrown by X4 happened to miss Y by just an inch. Would
it be fair for a court to find, on the ground of this evidential material, that X3 is guilty, but X4
is not? Common sense dictates that it would be grossly unfair not to convict X4 of murder as
well: it is in all probability merely coincidental that the one stone struck Y and that the other
830
189
CRW2601/1
one missed him by an inch (or, we might add, that a stone thrown by, say, X5 struck Y only
on his small toe, without any serious consequences to his life). Apart from this consideration,
it is clear that X1 to X5 all shared the same intention, namely to kill Y.
It would therefore be unfair to assume that a court may convict an accused only upon proof
that the stone, or stones, he threw himself, struck Y. If this were the law, criminals would be
able to escape the clutches of the law by merely ensuring that they never acted alone, but
always in a group. This would lead to absurd results. This is why it is necessary to have the
doctrine of common purpose.
831
14.3.4.4
The judgment in Safatsa
Read
Read the following decision in the Reader: Safatsa 1988 (1) SA 868 (A).
The leading case on the doctrine of common purpose is Safatsa 1988 (1) SA 868 (A). In this
case, the facts were the following: A crowd of about 100 people attacked Y, who was in his
house, by pelting the house with stones, hurling petrol bombs through the windows, catching him as he was fleeing from his burning house, stoning him, pouring petrol over him and
setting him alight. The six appellants formed part of the crowd. The court found that their
conduct consisted, inter alia, of grabbing hold of Y, wrestling with him, throwing stones at
him, exhorting the crowd to kill him, forming part of the crowd that attacked him, making
petrol bombs, disarming him and setting his house alight.
832
In a unanimous judgment delivered by Botha JA, the Appellate Division confirmed the six
appellants' convictions of murder by applying the doctrine of common purpose, since it was
clear that they all had the common purpose to kill Y. It was argued on behalf of the accused
that they could be convicted of murder only if a causal connection had been proved between
each individual accused's conduct and Y's death, but the court held that where, as in this
case, a common purpose to kill had been proved, each accused could be convicted of murder
without proof of a causal connection between each one's individual conduct and Y's death.
833
If there is no clear evidence that the participants had agreed beforehand to commit the
crime together, the existence of a common purpose between a certain participant and the
others may be proven by the fact that he actively associated himself with the actions of
the other members of the group.
834
14.3.4.5
Active association as proof of participation in a common purpose
The existence of a common purpose between a certain participant and the other members
of the group may be based upon a finding that the participant actively associated with the
actions of the other members of the group. This happens frequently in practice. In Mgedezi
1989 (1) SA 687 (A) 705I-706C, the Appellate Division held that if there is no proof of a previous
agreement between the perpetrators, an accused whose individual act is not causally related
to Y's death can be convicted of murder only on the strength of the doctrine of common
purpose if the following five requirements have been complied with:
835
y First, he must have been present at the scene of the crime.
y Second, he must have been aware of the assault on Y.
y Third, he must have intended to make common cause with those committing the assault.
190
y Fourth, he must have manifested his sharing of a common purpose by himself performing
some act of association with the conduct of the others.
y Fifth, he must have had the intention to kill Y or to contribute to his death.
Thus, somebody who was merely a passive spectator of the events will not, in terms of
this doctrine, be liable to conviction, even though he may have been present at the scene
of the action.
836
Other principles that emerge from the case law are the following:
837
y In murder cases, active association can result in liability only if the act of association took
place while Y was still alive and at a stage before the lethal wound had been inflicted
by one or more other persons (Motaung 1990 (4) SA 485 (A)).
y Active association with the common purpose should not be confused with ratification
or approval of another's criminal deed that has already been completed. Criminal liability
cannot be based on such ratification (Williams 1970 (2) SA 654 (A) 658-659).
14.3.4.6
Liability on the basis of active association declared constitutional
Read
Read the following decision in the Reader: Thebus 2003 (2) SACR 319 (CC).
In Thebus 2003 (2) SACR 319 (CC), liability for murder on the basis of active association with
the execution of a common purpose to kill was challenged on the grounds that it unjustifiably limits the constitutional right to dignity (s 10 of the Constitution), the right to freedom
and security of a person (s 12(1)(a)) and the right of an accused person to a fair trial (s 35(3)).
838
The Constitutional Court rejected these arguments and declared constitutional the commonlaw principle that requires mere "active association" instead of causation as a basis of liability
in collaborative criminal enterprises. One of the Court's main arguments was the following:
839
The doctrine of common purpose serves vital purposes in our criminal justice system.
The principal object of the doctrine is to criminalise collective criminal conduct and
thus to satisfy the need to control crime committed in the course of joint enterprises.
In consequence crimes such as murder it is often difficult to prove that the act of each
person, or of a particular person in the group, contributed causally to the criminal
result. Insisting on a causal relationship would make prosecution of collective criminal
enterprises ineffectual. Effective prosecution of crime is a legitimate, pressing social
need. Thus, there was no objection to the norm of liability introduced by the requirement of "active association", even though it bypassed the requirement of causation
(para [40] at 343f-344b).
14.3.4.7
Common purpose and dolus eventualis
Read
Read the following decision in the Reader: Lungile 1999 (2) SACR 597 (A).
191
CRW2601/1
For X to have a common purpose with others to commit murder, it is not necessary that his
intention to kill be present in the form of dolus directus. It is sufficient if his intention takes the
form of dolus eventualis; in other words, if he foresees the possibility that the acts of the participants with whom he associates may result in Y's death, and reconciles himself to this possibility.
840
Assume that X is charged with murder. The evidence brings to light that a number of persons,
among them X, took part in a robbery or housebreaking, and that Z, one of the members in
the group, killed Y in the course of the action. The question that arises is whether X and Z had
a common purpose to kill Y. The mere fact that they all had the intention to steal, to rob or to
break in is not necessarily sufficient to warrant the inference that all of them also had the common purpose to kill. A person can steal, rob or break in without killing anybody. Whether X
also had the intention to murder must be decided on the facts of each individual case.
841
The case of Mambo 2006 (2) SACR 563 (SCA) provides a practical illustration. Three awaitingtrial prisoners planned to escape from their court cells. The plan included the forceful dispossession (robbery) of a court orderly's firearm. When the orderly unlocked the gate of the cell
so that the accused could enter, X1 gripped the orderly around his neck, X2 reached for the
orderly's lower legs and tugged at them, causing him to lose his balance, and X3 reached
for the orderly's firearm in his holster on his right hip and grabbed it with both hands. As the
orderly wrestled to free himself from the clutches of X1 and X2, X1 uttered the word "Skiet"
("Shoot"). X3 cocked the firearm and fatally shot the orderly.
842
They were convicted in the High Court on charges of murder, robbery and escape from lawful
custody. The Supreme Court of Appeal upheld the convictions of all three on the robbery and
escape charges, because these were part of their prior agreement or mandate, but held that the
killing of the orderly did not form part of this mandate [para 16]. It therefore had to determine
whether the initial mandate had extended to include the murder of the orderly. The court held
that, by his conduct and culpability, X3 satisfied the requirements for liability on the murder
charge [para 16]. However, for his conduct (the killing of the orderly) to be imputed to X1 and
X2, the court had to establish that each of them foresaw the killing of the orderly as a possibility
arising from conduct of one of their number, and had reconciled himself to that possibility. The
court held that, by uttering the word "Skiet", X1 had proved that he shared a common purpose
with X3 in relation to the murder of the orderly [para 17]. However, the court noted that all that
X2 had done in the process of overpowering the orderly was to grab hold of his legs.
843
The state reasoned that by participating in the plan to escape, which involved the robbery of
the orderly's firearm, X2 must have foreseen the possibility that this could result in the death
of the orderly, and that he had reconciled himself thereto (i.e. he had dolus eventualis). The
court rejected this argument on the basis that the mere fact that the three accused intended
to rob the orderly in the execution of their plan to escape did not warrant the inference that
X2 had dolus eventualis in relation to the shooting [para 18]. X2 was therefore acquitted on
the murder charge.
844
Read
Read the following decision in the Reader: Molimi 2006 (2) SACR 8 (SCA).
In Molimi 2006 (2) SACR 8 (SCA), the Supreme Court of Appeal held that conduct by a member of a group of persons that differs from the conduct envisaged in their initial mandate
(common purpose) may not be imputed to the other members, unless each of the latter
845
192
knew (dolus directus) that such conduct would be committed, or foresaw the possibility
that it might be committed and reconciled themselves to that possibility (dolus eventualis).
X1, X2 and Z were co-conspirators to a planned robbery of a big retail store (Clicks) in a shopping mall. X1, the store manager, informed X2 about the exact time at which a security officer
(in the employ of Fidelity Guards) would arrive at the store to collect money. X1 encouraged
X2 to employ the services of four armed men, who would confront the security guard and
rob him of the money he had collected from the store. On the day in question, Z and three
armed men dispossessed the security officer of the money and fled with the loot. As they
fled, there was an exchange of gunfire between one of the robbers and the store's security
guard. They were both fatally wounded in the exchange.
846
The gunfire attracted the attention of a bystander in the shopping mall. As the three other
robbers ran in his direction towards the exit of the mall, they pointed their firearms at him,
but did not shoot. He then drew his firearm and shouted at them to drop theirs. He pursued
one of the armed men (Z), who had the loot in a bag. Z dropped the bag he was carrying
and ran into another store for refuge. Once inside the store, Z turned around and pointed the
gun at the bystander, who reacted by shooting at him (Z). The bullet missed Z, but wounded
an employee in the store. Z retreated further into the store and took a young man hostage.
While holding the hostage, with a firearm pointed at the hostage's head, he ordered the
bystander to surrender his firearm. The bystander responded by firing at him, but fatally
wounded the hostage. Z eventually surrendered.
847
X1, X2 and Z were all convicted in the High Court on seven counts, namely robbery; the
murder of the security guard of the store in which the robbery took place (Clicks); the attempted murder of the employee who was wounded in the other store; the kidnapping of
the hostage; the murder of the hostage held by Z in the other store; and two counts of the
unlawful possession of firearms.
848
X1 and X2 appealed to the Supreme Court of Appeal against their convictions. They conceded
the existence and proof of a common purpose (between X1, X2 and Z) to rob the store, but
argued that the actions of the bystander, which resulted in the kidnapping and death of
the hostage and injury to an employee in the other store, were not foreseeable by them (X1
and X2) as part of the execution of the common purpose. The court held that the attempted
murder of the employee in the other store was foreseeable, for, once all the participants in
a common purpose foresaw the possibility that anybody in the immediate vicinity of the
crossfire could be killed – regardless of who actually shot the fatal bullet –then dolus eventualis was present. It held, however, that the kidnapping of the hostage by Z and the
hostage's eventual murder were acts that were so unusual and so far removed from
what was foreseeable in the execution of the common purpose that these acts could
not be imputed to X1 and X2. They were therefore acquitted on these charges (murder
and kidnapping in respect of the hostage).
849
14.3.4.8
Dissociation from the common purpose
You need only read this section. You may be assessed on it in assignments, but
you do not have to study it for examination purposes.
Just as association with the common purpose leads to liability, dissociation or withdrawal
from the common purpose may, in certain circumstances, lead to negative liability. South
African courts have not yet developed very specific rules relating to the circumstances in
850
193
CRW2601/1
which withdrawal will effectively terminate X's liability. The following guidelines are a fair
reflection of South African law on this subject:
1. In order to escape conviction on the grounds of a withdrawal from a common purpose –
whether by prior agreement or active association – X must have a clear and unambiguous
intention to withdraw from such purpose. If X flees or withdraws because he is afraid of
being arrested, or being injured, or aims to make good his escape, then his withdrawal
will not have been motivated by a clear intention to withdraw from a common purpose
which he was a part of (Lungile 1999 (2) SACR 603 (SCA) at 603h-j).
2. In order to succeed with a defence of withdrawal, X must perform some positive act of
withdrawal. Mere passivity on his part cannot be equated with a withdrawal because,
by his previous association with the common purpose, he linked his fate and guilt with
that of his companions.
3. The type of act required for an effective withdrawal depends on a number of
circumstances. In Musingadi 2005 (1) SACR 395 (SCA) at 407h-j, the court listed the
following factors: "the manner and degree of the accused's participation; how far the
commission of the crime has proceeded; the manner and timing of disengagement;
and, in some instances, what steps the accused took or could have taken to prevent the
commission or completion of the crime". The court added that the list was not exhaustive,
but laid down this principle:
The greater the accused's participation, and the further the commission of the crime
has progressed, then much more will be required of an accused to constitute an effective disassociation. He may be required to take steps to prevent the commission of the
crime or its completion. It is in this sense a matter of degree and in a borderline case
calls for a sensible and just value judgment (409 g-h).
4. Much like the principles relating to the voluntary withdrawal of an attempt (SG 16.2.7), a
withdrawal will be effective if it takes place before the course of events has reached
the "commencement of the execution" – the stage when it is no longer possible to
desist from, or frustrate, the commission of the crime. It is "a matter of degree and ... calls
for a sensible and just value judgment" (Musingadi supra).
5. The withdrawal must be voluntary.
14.3.5 Joining in
851
(Criminal Law 224-232; Reader 123)
Assume that X, acting either alone or together with others in the execution of a common
purpose, has already wounded Y lethally. Thereafter, while Y is still alive, Z (who has not
previously – expressly or tacitly – agreed with X to kill Y) inflicts a wound on Y, which does
not, however, hasten Y's death. Thereafter, Y dies as a result of the wound inflicted by X. The
person in Z's position is referred to as a joiner-in because he associated himself with others' common purpose at a stage when Y's lethal wound had already been inflicted, although
Y was then (i.e. when Z joined the assault) still alive.
852
194
853
In order to portray the joining-in situation properly, it is important to bear the following in mind:
854
y Firstly, if the injuries inflicted by Z, in fact, hastened Y's death, there can be no doubt
that there is a causal connection between Z's acts and Y's death, and that Z is, therefore,
guilty of murder. (Therefore, Z is then not a joiner-in.)
y Secondly, if Z's assault on Y takes place after Y has already died from the injuries inflicted
by X or his associates, it is similarly beyond doubt that Z cannot be convicted of murder,
since the crime cannot be committed in respect of a corpse. (Therefore, Z is then not a
joiner-in.)
y Thirdly, if the evidence reveals a previous conspiracy between X (or X and his associates)
and Z to kill Y, Z is guilty of murder by virtue of the doctrine of common purpose, since X's
act in fatally wounding Y is then imputed to Z. (Therefore, Z is then not a joiner-in.) The
joining-in situation presupposes the absence of a common purpose between X and Z.
855
To summarise: The joiner-in is a person:
y whose attack on Y did not hasten Y's death
y whose blow was administered at a time when Y was still alive
y who did not act with a common purpose together with the other persons who also
inflicted wounds on Y
Note that the joiner-in is not a description of a category of participants other than
perpetrators and accomplices. It is merely a convenient term to use when referring to
person Z, as described in the set of facts mentioned above.
195
CRW2601/1
Nobody denies that the conduct of the joiner-in is punishable. The question is merely the
following: Of what crime must he be convicted? Before 1990, there was great uncertainty in
our law regarding the answer to this question. According to certain decisions and writers,
the joiner-in had to be convicted of murder, but according to other decisions and writers, he
could, at most, be convicted of attempted murder.
856
In 1990, in Motaung 1990 (4) SA 485 (A), the Appellate Division considered the different views
on the matter and, in a unanimous judgment delivered by Hoexter JA, ruled that the joiner-in
could not be convicted of murder, but only of attempted murder. The judgment in Motaung
is now the authoritative judgment on the liability of a joiner-in.
857
One of the reasons advanced by the court for its ruling was the following argument:
858
To hold an accused liable for murder on the basis of an association with the crime
only after all the acts contributing to the victim's death have already been committed
would involve holding him responsible ex post facto for such acts. The criminal law is
firmly opposed to liability based on ex post facto, or retrospective, responsibility and
does not recognise it in any other situation. It would therefore be contrary to accepted
principle to recognise it here.
(The expression "ex post facto" means "after the event".)
859
14.3.6 The most important principles relating to common purpose
We will now proceed to summarise the most important principles relating to the doctrine
of common purpose, as well as the liability of the joiner-in. Study these principles thoroughly.
If you know them well and are able to reproduce them all, you have the key to all the principles relating to common purpose.
860
1. If two or more people, having a common purpose to commit a crime, act together in order
to achieve that purpose, the acts of each of them in the execution of such a purpose are
imputed to the others.
2. In the case of a charge of having committed a crime that involves the causing of a certain
result (such as murder), the conduct imputed includes the causing of such result.
3. Conduct by a member of the group of persons having a common purpose that
differs from the conduct envisaged in the said common purpose may not be imputed
to another member of the group, unless the latter knew that such other conduct would
be committed, or foresaw the possibility that it might be committed and reconciled
himself to that possibility.
4. A finding that a person acted together with one or more other persons in a common
purpose may be based upon proof of a prior agreement or proof of active association
in the execution of the common purpose.
5. On a charge of murder, the rule that liability may be based on active association applies
only if the active association took place while the deceased was still alive and before
a mortal wound, or mortal wounds, had been inflicted by the person or persons who
commenced the assault.
6. Just as active association with the common purpose may lead to liability, so dissociation
or withdrawal from the common purpose may, in certain circumstances, lead to
negative liability.
196
Activity 14.1
X1, X2 and X3 are members of a criminal gang. Their main activities are to steal motor
vehicles at shopping centres. X1, the leader, is not involved in the actual stealing of cars.
He only tells X2 and X3 what to do. X2 and X3 always carry firearms and knives with them
when they engage in their criminal activities. Because of the dangerous nature of their
activities, all the members of the gang realise that somebody may get killed. In fact, the
gang leader (X1) has instructed them to kill anyone who interferes with their activities.
One evening, while X2 and X3 are attempting to steal a car parked in an underground
parking garage, Y, the owner of the car, arrives at the scene. Upon seeing the robbers, she
screams for help, but X2 and X3 force her into the boot of her car. They drive 20 kilometres
out of the city to a desolate area in the bush. X2 rapes Y and then cuts Y's throat. During
all these events, X3 holds Y down. They (X2 and X3) then leave the scene of the crime.
Y, who is mortally wounded, screams for help. X4, a passer-by, hears her screams. X4 is
not a member of the gang. He has never even met any of the members of the gang. He
also rapes Y and, intending to kill her, hits her with a stick over the head. Fifteen minutes
after being raped and assaulted by X4, Y dies. The autopsy report reveals that Y died as
a result of blood loss incurred by the throat-cutting. In the report, it is also stated that
the head injury did not hasten her death.
You are the state prosecutor. Explain which crimes (if any) X1, X2, X3 and X4 have committed and the legal grounds upon which the liability of each will be based.
Feedback
16
We will first deal with the murder of Y. X1, X2 and X3 are guilty of having murdered Y in terms
of the general principles of liability. The actions of each of them qualify as the cause of Y's
death. There is no doubt that the act of X2 was the direct cause of Y's death. Because the
definition of the crime of murder is very wide, the acts of the gang leader, X1, as well as those
of X2 and X3, are the cause (conditio sine qua non and legal cause) of Y's death. X1 instructed
the members of the gang to kill anybody who interfered with their activities, and X3 held
Y down so that X2 could cut her throat. All three of them are perpetrators of murder. X1 is
an indirect perpetrator and X2 and X3 are direct perpetrators. See the discussion in 14.3.2
above. All three accused (X1, X2 and X3) had at least foreseen the possibility of an innocent
person being killed during the course of their criminal activities. In other words, all of them
had at least dolus eventualis in respect of Y's death.
The alternative basis upon which X1, X2 and X3 may be convicted of having murdered Y
is to rely on the doctrine of common purpose. In terms of this doctrine, the state need not
prove the element of causation in respect of each accused. Instead, the acts of each of the
participants in the execution of the common purpose are imputed to the others. The leading
cases in this regard are Safatsa and Mgedezi. Keep in mind, however, that the state still has
to prove that each accused acted with intention. Since, according to the autopsy report, X4's
act did not causally contribute to Y's death, X4 cannot be convicted of murder.
As regards Y's rape, X2 may also be convicted of this crime. X2 is the perpetrator of rape
and X3 is an accomplice to rape. The reason why X3 cannot be convicted of rape as a coperpetrator is that he never performed an act of sexual penetration on Y. His conduct does
not fall within the definition of rape. By holding Y down to the ground, X3 nevertheless
furthered the commission of the crime by somebody else (X2) and, therefore, he (X3) is an
accomplice to rape. X1 cannot be convicted of rape because he never performed an act of
197
CRW2601/1
sexual penetration on Y and did nothing to further the crime. Presumably, he never even
anticipated that X2 and X3 would have sexually penetrated a woman without her consent.
X4 is guilty of rape and attempted murder in respect of Y. As regards the crime of attempted
murder, X4 is a typical example of a joiner-in. The leading case in this regard is Motaung.
SUMMARY
1. Persons involved in the commission of a crime are divided into two groups, namely
participants and non-participants.
2. Participants further the commission of the crime, whereas non-participants do not further
the commission of the crime. An accessory after the fact is a non-participant, since she
comes into the picture only after the crime has already been completed, and then helps
the perpetrator or accomplice to escape liability.
3. Participants are divided into two groups, namely perpetrators and accomplices. The
distinction drawn between these two groups is the most important distinction relating
to participation in crime. Consult the definitions of a perpetrator and an accomplice given
above.
4. Unlike a perpetrator, an accomplice does not, through her conduct, state of mind or
personal description, fall within the definition of the crime, but nevertheless commits an
act whereby she furthers the commission of the crime by somebody else.
5. If we consider the definition of a perpetrator, it is clear that there are two grounds upon
which a person can qualify as perpetrator, namely either on the ground that she complies
with the definition of the crime, in which case we merely apply the ordinary principles of
liability (and, in murder more particularly: only the ordinary principles relating to causation),
or by virtue of the operation of the doctrine of common purpose.
6. As far as the doctrine of common purpose and the liability of the joiner-in are concerned,
consult 14.3.6 for the most important principles applicable to this topic.
Further reading
For more information on participation and perpetrators, read:
• Burchell Principles of Criminal Law (2016) 473–505.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 257–271.
Self-assessment
14
(1) Distinguish between a participant and a non-participant in a crime.
(2) Distinguish between a perpetrator and an accomplice, and give an example of each.
(3) Give a definition of each of the following: a perpetrator, an accomplice, and the doctrine
of common purpose.
(4) Explain in one sentence why an accessory after the fact does not qualify as a participant in a crime. (Write the answer here.)
.............................................................................................................................
.............................................................................................................................
.............................................................................................................................
198
(5) If more than one perpetrator is involved in the commission of a crime, is it necessary to
identify one of them as the principal perpetrator?
(6) Explain the meaning of "direct perpetrator" and "indirect perpetrator". Is there any difference between these two categories of perpetrators as far as their liability for the crime
is concerned?
(7) Summarise the rules pertaining to the doctrine of common purpose.
(8) Discuss the judgment in Safatsa 1988 (1) SA 868 (A). Briefly mention the facts in this case,
as well as the points of law decided by the court.
(9) Briefly discuss the judgment of the Constitutional Court in Thebus 2003 (2) SACR 319 (CC).
(10) (a) What do you understand by the term "joiner-in"?
(b) Explain whether there is any difference between a joiner-in and a co-perpetrator,
and give reasons for your answer.
(c) What crime does the joiner-in commit?
(d) What is the leading case on the liability of the joiner-in and what was decided
in this case?
(11) Discuss the circumstances in which our courts may find that a person has dissociated
herself or withdrawn from a common purpose.
199
CRW2601/1
LEARNING UNIT 15
Participation II: accomplices and accessories after the
fact
Contents
Learning outcomes
15.1 Background
15.2 Accomplices
15.2.1 Introduction
15.2.2 Definition
15.2.3 Technical and popular meaning of the word "accomplice"
15.2.4 Requirements for liability as an accomplice
15.2.5 Is it possible to be an accomplice to murder?
15.3 Accessories after the fact
15.3.1 Introduction
15.3.2 Definition
15.3.3 Requirements for liability of accessory after the fact
15.3.4 Reason for existence questionable
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate a greater understanding of the principles relating to participation by
– expressing an informed opinion whether an accused can be held liable as an
accomplice
– expressing an informed opinion whether an accused can be held liable as an accessory after the fact
200
15.1 BACKGROUND
In the previous study unit, we started our discussion of participation in a crime. In that study
unit we explained the difference between participants and non-participants, as well as between
perpetrators and accomplices. Make sure that you understand these differences well before
embarking on this study unit. We have already discussed the liability of perpetrators in the
previous study unit. In this study unit, we discuss accomplices and accessories after the fact.
861
15.2 ACCOMPLICES
(Criminal Law 233-237)
862
15.2.1 Introduction
Where a person does not participate in the commission of a crime as a perpetrator, he may
nevertheless participate in the crime and be liable as an accomplice. The definition of each
crime is directed primarily at the perpetrator, and the perpetrator is the person whose conduct conforms to all the elements contained in the definition of the crime in question, or
who qualifies as a perpetrator in terms of the common-purpose doctrine. The accomplice is
a person whose conduct does not conform to all the requirements in the definition of the
crime, but which is nonetheless punishable because he has intentionally furthered the commission of the crime by another person. Liability as an accomplice is, therefore, something
less than liability as a perpetrator. See our discussion above on the distinction between
perpetrators and accomplices.
863
15.2.2 Definition
See the definition of an accomplice given in the previous study unit.
864
15.2.3 Technical and popular meaning of the word "accomplice"
Confusion can easily arise about the meaning of the word "accomplice". The reason for this is
that the word can have two meanings, namely a technical (or narrow) meaning and a popular (or broad) meaning. The popular meaning is the meaning the word has in the everyday
865
201
CRW2601/1
language of laypersons; according to this meaning, the word refers to anybody who helps
the "actual" or "principal" perpetrator to commit the crime, or who furthers the commission
in some way or another, without distinguishing between persons who qualify as perpetrators, as defined above (i.e. who comply with the definition of the crime or who qualify in
terms of the doctrine of common purpose), and those who do not qualify as perpetrators.
The popular meaning of this word is, accordingly, so wide that it may also refer to persons
who are, technically speaking, perpetrators.
The technical meaning of the word refers only to its narrower meaning as stated in the definition of "accomplice" above. According to this narrower meaning, an accomplice can never
include a perpetrator, that is, somebody who complies with all the requirements for liability
set out in the definition of the crime. In the discussion that follows, as well as every time
the word "accomplice" is used in legal terminology, it bears the technical (narrow)
meaning as explained above.
866
15.2.4 Requirements for liability as an accomplice
In order to be liable as an accomplice, the following four requirements must be complied with.
867
1. Act
There must be an act (in the criminal-law sense of the word) by which the commission of
a crime by another person is furthered or promoted. Furtherance can take place by way of
aiding, counselling, encouraging or ordering (Jackelson 1920 AD 486). Merely being a
spectator at the commission of a crime naturally does not amount to furtherance thereof
(Mbande 1933 AD 382, 392-393).
868
869
The following are EXAMPLES of conduct for which a person has been held liable as an accomplice:
a.
b.
In Peerkhan and Lalloo 1906 TS 798, the conduct forbidden in the definition of the
crime was the purchasing of unwrought gold. Lalloo bought the gold and was
thus a perpetrator. Peerkhan bought no gold, but acted as interpreter, adviser
and surety in connection with the transaction. Consequently, his conduct did not
comply with the definition of the crime (the purchase of gold), but nonetheless
constituted furtherance of the purchase; accordingly, he was an accomplice.
In Kazi 1963 (4) SA 742 (W), the forbidden conduct was the holding or organising
of a meeting without the necessary permission. Kazi did not hold or organise the
meeting, but nonetheless addressed it. It was held that his conduct rendered him
guilty as an accomplice.
2. Unlawfulness
The act of furthering, as described above, must be unlawful. In other words, there must not
be any justification for it.
870
3. Intention
The crime, which is committed by another person, must be furthered intentionally (Quinta
1974 (1) SA 544 (T) 547). Negligence is not sufficient. The shop assistant who inadvertently
fails to close the shop window is not an accomplice to the housebreaking that follows. He
will be an accomplice only if, knowing of the intended housebreaking and in order to help
the thief, he does not close the window properly. In such a case, the thief need not be aware
of the shop clerk's assistance. It is therefore sufficient if the accomplice intentionally furthers
the crime.
871
202
It is not necessary for the perpetrator to have been conscious of the accomplice's assistance.
Mutual, conscious cooperation is, therefore, not a requirement (Ohlenschlager 1992 (1)
SACR 695 (T) 768g-h).
872
4. Accessory character of liability
A crime must have been committed by some other person. Liability as an accomplice is
known as "accessory liability". No person can be held liable as an accomplice unless some
other person is guilty as a perpetrator (Williams supra 63; Maxaba supra 1155). This implies
that a person cannot be an accomplice to his own crime, that is, to a crime that he committed as a perpetrator.
873
15.2.5 Is it possible to be an accomplice to murder?
In Williams 1980 (1) SA 60 (A), it was accepted that a person can be an accomplice to murder,
but this aspect of the judgment has been criticised by Snyman (Criminal Law). Please study
the discussion of this important and interesting topic on your own, in Criminal Law (269-270).
You must know what the objection is to convicting a person of being an accomplice (as opposed to a co-perpetrator) to murder. You must ensure that you know what the criticism is.
874
In the light of the above-mentioned discussion, we are of the opinion that it is not possible
to be an accomplice to murder.
875
15.3 ACCESSORIES AFTER THE FACT
(Criminal Law 237-240)
876
15.3.1 Introduction
As was pointed out above, an accessory after the fact is not a participant, because he does
not further the crime. He comes into the picture only after the crime has been completed,
and then helps the perpetrator (or perhaps the accomplice) to escape justice.
877
878
EXAMPLES of the conduct of an accessory after the fact are the following:
y X helps the real murderer by throwing the corpse into a river (Mlooi 1925 AD 131).
y Z murdered Y. After the murder, X and Z removed certain parts of Y's body and, thereafter,
disposed of the body by leaving it in a lonely spot at the top of a mountain. X had nothing
to do with the murder itself, but was convicted of being an accessory after the fact in
respect of the murder (Mavhungu 1981 (1) SA 56 (A)).
15.3.2 Definition
A person is an accessory after the fact to the commission of a crime if, after the commiss
ion of the crime, he unlawfully and intentionally engages in conduct intended to enable
the perpetrator of, or accomplice to, the crime to evade liability for his crime, or to
facilitate such a person's evasion of liability.
203
CRW2601/1
15.3.3 Requirements for liability of accessory after the fact
In order to be convicted of being an accessory after the fact, the following six requirements
must be complied with:
879
1. Act or omission
The accessory after the fact must engage in some conduct (act or omission) whereby he
assists either the perpetrator or the accomplice to evade liability. Mere approval or condonation of the crime is not enough.
880
It is possible for a person to be an accessory after the fact on the ground of an omission. This
will be the case if there is a legal duty upon such a person to act positively. An example in
this respect is where a police officer sees that a crime has been committed, but intentionally
remains passive because he wants to protect the criminal who has committed the crime from
detection. The mere approval or ratification of a crime after its commission is insufficient
to construe a person as being an accessory after the fact to its commission.
881
2. After the commission of the crime
X's act or omission must take place after the commission of the actual crime. If X's act
takes place at a time when the crime is still in the process of being committed, he may qualify
as a co-perpetrator or accomplice. If X had agreed, prior to the commission of the crime, to
render assistance, X may, depending upon the circumstances, be a perpetrator himself if his
conduct, culpability and personal qualities accord with the definition of the crime; alternatively, he may be an accomplice (Maserow 1942 AD 164, 170).
882
3. Enabling perpetrator or accomplice to evade liability
The act must be of a certain nature. It must be such that it assists the perpetrator or
accomplice to evade liability for his crime, or to facilitate such a person's evasion of liability.
883
The protection or assistance given need not be successful. A person would therefore
be guilty as an accessory after the fact even though the corpse that he helped to conceal
by submerging it in a river is discovered by the police and recovered from the river, and the
murderer is brought to justice.
884
4. Unlawfulness
The act must be unlawful, which means that there must be no justification for it.
885
5. Intention
The accessory after the fact must render assistance intentionally. He must know that the
person he is helping has committed the crime. He must have the intention of assisting the
perpetrator (or accomplice) to evade liability or to facilitate the evasion of liability (Morgan
1992 (1) SACR 134 (A) 174).
886
6. Accessory character of liability
The liability of the accessory after the fact, like that of an accomplice, is accessory in character.
There can be an accessory after the fact only if somebody else has committed the crime as perpetrator. As a result, you cannot be an accessory after the fact to a crime committed by yourself.
887
In Gani 1957 (2) SA 212 (A), the Appeal Court convicted three persons of the crime of being
accessories after the fact to the murder, on the strength of the following argument:
888
204
If all three committed the murder, they are all three accessories after the fact because
all three of them disposed of the corpse; if the murder was not committed by all of
them, those who did not commit the murder are accessories after the fact in respect
of the murder committed by the other(s), and the latter are accomplices to the crime
of being an accessory after the fact.
In Jonathan 1987 (1) SA 633 (A), the Appellate Division was invited to hold that Gani's case was
wrongly decided, but the court confirmed Gani's case, adding that the "rule in Gani's case"
may be regarded as an exception to the general rule that you cannot be an accessory
after the fact in respect of a crime committed by yourself.
889
15.3.4 Reason for existence questionable
In conclusion, it may be asked whether the crime of being an accessory after the fact is really
necessary in our law. In our opinion, it is not. Being an accessory after the fact completely
overlaps with the crime known as defeating or obstructing the course of justice – a crime that
we will discuss briefly later on in the second module. Even the Appellate Division admitted
this: see Gani supra 220A; Pakane 2008 (1) SACR 518 (SCA).
890
Accomplice or accessory?
Consider the following scenario: X and his friends are visiting a shebeen after their
football team has lost to their rivals. X goes outside to have a cigarette, and sees his
friend, Z, kicking Y, a supporter from the winning team, who is lying on the ground. Z
stops kicking Y when he sees X. X gives Y a “thumbs up”, and smiles. Z begins kicking
Y again, and X goes back inside the shebeen. Z is later charged with assault with the
intent to do grievous bodily harm. Can X be held liable as an accomplice or even an
accessory after the fact to this crime? Or is X not guilty of any crime? What are your
thoughts about this?
891
SUMMARY
1. See definition of accomplice in previous study unit.
2. The conduct of an accomplice amounts to a furthering of the crime by somebody else.
"Furthering" includes rendering assistance, giving advice, encouraging, and so forth.
3. An accomplice is guilty only if he furthers the crime unlawfully and intentionally.
4. A person cannot be an accomplice unless somebody else is a perpetrator.
5. An accessory after the fact is not a participant because he does not further the crime.
6. See the above definition of an accessory after the fact.
7. In order to be liable as an accessory after the fact, a person must render assistance
intentionally to somebody who has already committed the crime as a perpetrator or as
an accomplice.
8. The liability of an accessory after the fact, like that of an accomplice, is accessory in
character. This means that there can be an accessory after the fact only if somebody else
has committed the crime as perpetrator. It also means that you cannot be an accessory
after the fact to a crime committed by yourself. However, in Gani, the Appellate Division
created an exception to the aforementioned rule.
205
CRW2601/1
Further reading
For more information on accomplices and accessories after the fact, read:
• Burchell Principles of Criminal Law (2016) 505–523.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 272–278.
Self-assessment
15
(1) Name and discuss the requirements for liability as an accomplice (as opposed to a
perpetrator).
(2) Discuss the accessory character of accomplice liability.
(3) Is it possible to be an accomplice to murder? Give reasons for your answer.
(4) Define an accessory after the fact.
(5) Discuss the requirements for liability as an accessory after the fact.
(6) Discuss the decision in Gani relating to the accessory character of the liability of an accessory after the fact.
206
LEARNING UNIT 16
Attempt, conspiracy and incitement
Contents
Learning outcomes
16.1 Background
16.2 Attempt
16.2.1 General
16.2.2 Definition of rules relating to attempt
16.2.3 Four different types of attempt
16.2.4 Completed attempt
16.2.5 Interrupted attempt
16.2.6 Attempt to commit the impossible
16.2.7 Voluntary withdrawal
16.2.8 Intention
16.3 Conspiracy
16.4 Incitement
Summary
Further reading
Test yourself
Learning outcomes
When you have finished this study unit, you should be able to
• demonstrate your understanding of the principles relating to anticipatory crimes by
– expressing an informed opinion whether certain conduct amounts to a punishable
attempt to commit a specific crime
– expressing an informed opinion whether an accused can be convicted of conspiracy
or incitement
207
CRW2601/1
16.1 BACKGROUND
Until now, we have dealt with completed crimes, and have explained when a person would
be guilty of a crime on account of her involvement in the commission of the crime before,
during or after its commission. In this study unit we will explain that a person may be guilty
of an offence even though the crime that she wanted to commit was never completed. The
instances that we are referring to are those where X
892
y attempts (tries) to commit a crime, but does not succeed in completing it
y agrees (conspires) with another to commit a crime
y does something to influence (incites) another to commit a crime
Attempt, conspiracy and incitement are often referred to as "inchoate" or "anticipatory"
crimes, since they deal with forms of punishable conduct that anticipate or precede the
actual completion of the crime.
893
Why does the law punish not only the completed crime, but also the above-mentioned
anticipatory forms of conduct? One of the reasons is to be found in the preventive theory
of punishment. The law seeks to prevent the commission of the completed crime. If these
anticipatory forms of conduct were not punishable, the maintenance of law and order would
suffer seriously because the police would then be powerless to intervene when they happen
to become aware of people preparing to commit a crime.
894
Imagine the police hearing that a group of persons is preparing to rob a bank with the use of
firearms. They know who the would-be robbers are and they watch them get into their car
and drive, armed, to the bank. If such anticipatory conduct were not punishable, the police
would be in the ludicrous position of having to wait until the completion of the crime (perhaps involving the shooting of innocent people) before they could apprehend the robbers.
895
16.2 ATTEMPT
896
(Criminal Law 241-251; Reader 143-152)
16.2.1 General
Attempts to commit common-law crimes are punishable in terms of common law. Initially, it was
uncertain whether attempts to commit a statutory crime were also punishable, but this uncertainty
has now been removed by section 15(1) of Act 27 of 1914 (subsequently replaced by s 18(1) of Act 17
of 1956), which clearly provides that an attempt to commit a statutory offence is also punishable.
897
208
16.2.2 Definition of rules relating to attempt
We begin by giving a definition of the rules relating to attempt.
898
1. A person is guilty of attempting to commit a crime if, intending to commit that crime,
she unlawfully engages in conduct that is not merely preparatory but has reached at
least the commencement of the execution of the intended crime.
2. A person is guilty of attempting to commit a crime, even though the commission of the
crime is impossible, if it would have been possible in the factual circumstances that she
believes exist, or will exist at the relevant time. If you find these rules somewhat difficult
to comprehend at the first reading, don't feel discouraged. We will explain them in the
discussion that follows.
16.2.3 Four different types of attempt
We can distinguish four different types of attempt. They correspond to four different reasons
that X has not completed the crime, despite having embarked upon the commission thereof.
These four types of attempt are the following:
899
1. Completed attempt. In this type of situation, X does everything she can to commit
the crime, but for some reason the crime is not completed, for example
• where X fires at Y, but misses
• where X fires at Y and strikes Y, but Y's life is fortunately saved by prompt medical
intervention
This type of situation is impliedly contained in the first paragraph of the definition of the
rules relating to attempt given above.
900
2. Interrupted attempt. In this type of situation, X's actions have reached the stage when
they are no longer merely preparatory, but are, in effect, acts of execution when they
are interrupted, so that the crime cannot be completed. For example:
• X, intending to commit arson, pours petrol onto a wooden floor, but is apprehended
by a policeman just before she strikes a match.
• X, a prisoner intending to escape from prison, breaks and bends the bars in the window of his cell, but is apprehended by a warder before he can succeed in pushing
his body through the opening.
This type of situation is described in the first paragraph of the definition of the rules
relating to attempt given above.
901
3. Attempt to commit the impossible. In this type of situation, it is impossible for X to
commit or complete the crime, either
• because the means she uses cannot bring about the desired result, such as where
X, intending to murder Y, administers vinegar to her in the firm, but mistaken, belief
that the vinegar will act as a poison and kill Y, or
• because it is impossible to commit the crime in respect of the particular object of
her actions, such as where X, intending to murder Y while he is asleep in bed, shoots
him through the head, but Y, in fact, died of a heart attack an hour before.
This type of situation is described in the second paragraph of the definition of the rules
relating to attempt given above.
902
209
CRW2601/1
4. Voluntary withdrawal. In this type of situation, X's actions have already reached the
stage when they qualify as acts of execution, when X, of her own accord, abandons
her criminal plan of action, for example
• where, after putting poison into Y's porridge, but before giving it to Y, X has second
thoughts and decides to throw the porridge away.
This type of situation is impliedly contained in the first paragraph of the definition of the
rules relating to attempt given above.
903
We will now proceed to discuss these four forms of attempt one by one.
904
16.2.4 Completed attempt
905
(Criminal Law 243-244)
As a general rule, it may be assumed that if X has done everything she set out to do in
order to commit the crime, but the crime is not completed, she is guilty of attempt.
906
The following are EXAMPLES:
907
y where X fires at Y, but the bullet misses her
y where X fires at Y and strikes Y, but Y's life is fortunately saved by prompt medical intervention
y where X, intending to infringe Y's dignity (conduct that, in principle, amounts to
the commission of the crime known as crimen iniuria), writes a letter to Y that contains
abusive allegations about Y and posts it, but the letter is intercepted by the authorities
before it can reach Y
y where X, who is HIV-positive and is fully aware of this, rapes Y without taking preventative
measures (for example, using a condom), he or she may be convicted of rape as well as
attempted murder (Nyalungu 2013 (2) SACR 99 (T). In Phiri 2014 (1) SACR 211 (GNP), the
court held that consent to sexual intercourse is also not a defence in such circumstances.
X, after having developed a relationship with Y, had consensual sexual intercourse with
her knowing that he (X) was HIV-positive. X was convicted of attempted murder. The form
of intention in such instances is at least that of dolus eventualis.
This type of attempt is impliedly contained in the first paragraph of the definition of the rules
relating to attempt given above. In that paragraph, conduct that has reached the "commencement of the execution" stage is required. If, as is the case in this type of attempt, X has done
everything she set out to do in order to commit the crime, there can be no doubt that her acts
are acts of execution, as opposed to preparation. (The difference between acts of preparation
and acts of execution will be explained in the discussion of the next type of attempt.)
908
16.2.5 Interrupted attempt
909
16.2.5.1
(Criminal Law 244-246; Reader 143-146)
General
The majority of reported cases on attempt deal with this form of attempt. Whereas there
is, as a rule, no difficulty in holding X liable for attempt in situations of so-called completed
attempt (described above), in cases of interrupted attempt it can often be difficult to decide
whether X's conduct amounts to punishable attempt.
910
210
Mere intention to commit a crime is not punishable. Nobody can be punished for her thoughts.
A person can be liable only once she has committed an act, in other words, once her resolve
to commit a crime has manifested itself in some outward conduct. However, it is not just
any outward conduct that qualifies as a punishable attempt. If X intends to commit murder,
she is not guilty of attempted murder the moment she buys the revolver; and if she intends
to commit arson, she is not guilty of attempted arson the moment she buys a box of matches.
911
On the other hand, it stands to reason that there does not have to be a completed crime
before a person may be guilty of attempt. Somewhere between the first outward manifestation of her intention and the completed crime there is a boundary that X must cross before
she is guilty of attempt. How to formulate this boundary in terms of a general rule is one of
the most daunting problems in criminal law.
912
913
In cases of this nature, we must, in fact, differentiate between three different stages:
y In the first stage, X's conduct amounts to no more than mere acts of preparation.
For example, intending to kill her enemy, Y, X merely buys a knife at a shop. If this act of
preparation is the only act that can be proved against her, she cannot be convicted of
any crime.
y In the second stage, her acts have proceeded so far that they no longer amount to mere
acts of preparation, but, in fact, qualify as acts of execution or consummation. For
example, after searching for Y, she finds her and charges at her with the knife in her hand,
although a policeman prevents her from stabbing Y. In this case, X is guilty of attempted
murder.
y In the third stage, X has completed her act and all the requirements for liability have
been complied with. For example, she has stabbed and killed Y. In this case, she is guilty
of murder (the completed crime).
The distinction between the first and second stages is crucial in determining whether X is
guilty of attempt. Again, the distinction between the second and third stages is crucial in
determining whether X has merely committed an attempt or whether she has committed
the completed crime.
914
16.2.5.2
The rule applied in cases of interrupted attempt
Liability for attempt in this type of situation is determined by the courts with the aid of an
objective criterion, namely by distinguishing between
915
y acts of preparation and
y acts of execution (or consummation).
If what X did amount merely to preparation for a crime, there is no attempt. If, however,
her acts were more than acts of preparation and were, in fact, acts of consummation, she is
guilty of attempt.
916
Although this test (namely to distinguish between acts of preparation and acts of consummation) may seem simple in theory, in practice it is often very difficult to apply. The reason
for this is the vagueness of the concepts "preparation" and "consummation". In applying this
test, a court has to distinguish between "the end of the beginning and the beginning of the
end". Each factual situation is different and the test as applied to one set of facts may be
no criterion in a different factual situation. In Katz 1959 (3) SA 408 (C) 422, it was stated that
"a value judgment of a practical nature is to be brought to bear upon each set of facts as it
arises for consideration".
917
211
CRW2601/1
16.2.5.3
EXAMPLES of the application of rule
The most important cases in which the courts have enunciated this test (namely to differentiate
between acts of preparation and acts of consummation) are Sharpe 1903 TS 868 and Schoombie 1945 AD 541. In the latter case, X had gone to a shop in the early hours of the morning and
had poured petrol around and underneath the door, so that the petrol flowed into the shop.
He placed a tin of inflammable material against the door, but his whole scheme was thwarted
when, at that moment, a policeman appeared. The Appellate Division confirmed his conviction
of attempted arson and, in the judgment, authoritatively confirmed that the test to be applied
in these cases was to distinguish between acts of preparation and acts of consummation.
918
Read
Read the aforementioned decision in the Reader: Schoombie 1945 AD 541.
The following are some further EXAMPLES of the application of the test:
919
1. Mere acts of preparation (i.e. acts in respect of which X cannot be convicted of attempt)
• X, intending to murder Y, is merely preparing the poison that she intends to use to
poison Y later, when she is caught.
• X, intending to buy goods that she knows to be stolen goods (conduct that would
render her guilty of the crime of possessing stolen goods), merely inspects the
goods that the real burglar has stolen, when she is apprehended (Croucamp 1949
(1) SA 377 (A)).
2. Acts of consummation (i.e. acts in respect of which X can be convicted of attempt)
• X, trying to rape Y, has as yet only assaulted her when he is apprehended (W 1976
(1) SA 1 (A)).
• X, trying to steal from a woman's handbag, has opened the handbag hoping that
its contents will fall out, when he is apprehended.
212
16.2.6 Attempt to commit the impossible
(Criminal Law 246-247; Reader 147-152)
920
16.2.6.1
The subjective and objective approaches
Before 1956, there was no certainty in our law whether this type of attempt was punishable.
In particular, it was uncertain – in deciding if X's conduct amounted to a punishable attempt
– whether to employ an objective or a subjective test.
921
If we employ an objective test, we consider the facts only from the outside, that is, without
considering the subjective aims that X has in mind when she performs the act. If we follow this
approach, X would never be guilty of attempt because what she is trying to do in cases falling
within this category cannot physically (i.e. objectively) result in the commission of an offence.
922
Consider, for example, the situation where X tries to sell uncut diamonds to Y. (It is a statutory offence to sell uncut diamonds.) She offers a stone to Y, which she (X) believes to be
an uncut diamond, whereas it is, in reality, merely a piece of worthless glass. (Some uncut
diamonds sometimes resemble a piece of glass.) If we employ an objective test, X cannot
be convicted of an attempt to sell an uncut diamond, because, objectively, the sale – or offering for sale – of a piece of glass is something entirely different from the sale – or offering
for sale – of an uncut diamond.
923
If, however, we employ a subjective test, X can be convicted of attempt because, according
to this test, what is decisive is X's subjective state of mind, that is, her belief that what she
was doing was selling an uncut diamond and not a piece of glass.
924
16.2.6.2
The decision in Davies
In 1956, the uncertainty whether the test was objective or subjective was settled by the Appellate Division in Davies 1956 (3) SA 52 (A). In this case, the court had to decide whether
X was guilty of an attempt to commit the former crime of abortion if the foetus, which he
had caused to be aborted, was already dead, although he had believed the foetus to be still
alive. (The crime of abortion could, in terms of its definition, be committed only in respect of
a live foetus.) The Appellate Division adopted the subjective test and held that X was guilty
of attempt. It further held that X would have been guilty of attempt even if the woman had
not been pregnant, provided, of course, that X had believed that she was pregnant and had
performed some act intending to bring about an abortion. The court further held that it
is immaterial whether the impossibility of achieving the desired end is attributable to the
wrong means employed by X, or to the fact that the object in respect of which the act
is committed is of such a nature that the crime can never be committed in respect of it.
925
In cases of attempt to commit the impossible, the test according to this decision is, therefore, subjective and not objective. What the law seeks to punish in cases of this nature is not
any harm that might have been caused by X's conduct (because such harm is non-existent),
but X's "evil state of mind", which manifested itself in outward conduct that was not merely
preparatory, but amounted to an act of execution.
926
Note that the rule that, in order to be convicted of attempt, X's act must be an act of
consummation, also applies to this form of attempt.
213
CRW2601/1
Read
Read the aforementioned decision in the Reader: Davies 1956 (3) SA 52 (A).
The crime of rape can be committed only in respect of a human being who is alive. In W 1976
(1) SA 1 (A), X had sexual intercourse with what he believed to be a live woman, whereas the
woman was, in fact, already dead. X also believed that the woman did not consent to the
intercourse. The court held that he could be convicted of attempted rape. This is an example
of impossible attempt, where the impossibility resided in the object in respect of which the
act was performed.
927
In Ngcamu 2011 1 SACR 1 (SCA), X had appealed against his conviction of attempted murder
involving an attempt to commit the impossible. X had fired at a Coin Security armoured truck,
but nobody was injured because the bullets could not penetrate the truck. The court upheld
the conviction of attempted murder, arguing that it was irrelevant that the complainant was
in an armoured vehicle and that he did not believe that he was at risk of injury or death from
the gunfire (par 19). The court found that the shooter had the requisite criminal intent, even
if he was attempting the impossible.
928
16.2.6.3
Committing a "putative crime" is not a punishable attempt
In the Davies case, as well as the case of W, discussed above, X was mistaken about the facts.
(In Davies, X wrongly believed that the foetus was still alive, and in W, he wrongly believed
that the woman was still alive. These are not mistakes concerning the contents of the law,
but mistakes concerning the presence of certain material facts.) The situation in which this
type of mistake is made should be contrasted with the situation in which X is mistaken, not
about the relevant facts, but about the relevant legal provisions.
929
Consider the following EXAMPLE:
930
X thinks that there is a law that makes it an offence for one person to give another a
bottle of brandy. (In reality, there is no law stipulating that such conduct is a crime.) X
gives Y a bottle of brandy as a present in the mistaken belief that, by performing this
act, he is committing a crime. Although X subjectively believes that he is committing
a crime, objectively (i.e. viewed from the outside), his conduct is, in reality, perfectly
lawful. What he is attempting to do is to commit something (a crime) that is impossible
to commit, because there is no law stating that such conduct is punishable.
The question now is: Does X's conduct in this example also fall within the ambit of punishable
attempt to commit the impossible? The answer to this question is “no”. The reason for this is
that, in Davies supra, the court specifically stated that there is an exception to the rule that impossible attempt is punishable. This exception was formulated as follows by Schreiner JA (at 64):
931
If what the accused was aiming to achieve was not a crime, an endeavour to achieve it
could not, because by a mistake of law he thought that his act was criminal, constitute
an attempt to commit a crime.
What the judge was actually saying was that although the general rule is that attempts
to commit the impossible are punishable, this rule is limited to cases where the impossibility originated from X's mistaken view of the material facts, and that it does not
apply where the impossibility originated from X's mistaken view of the law. Thus, if,
932
214
because of a mistake concerning the contents of the law, X thinks that the type of act he
is committing is punishable (i.e. that there is a legal provision stating that the type of act
he is committing constitutes a crime), whereas the law, in fact, does not penalise that type
of act, X's conduct does not qualify as punishable attempt, despite the fact that it may be
described as an attempt to commit the impossible.
This type of situation (i.e. impossible attempt originating in X's mistake of law) is sometimes
referred to as a putative crime. The word "putative" is derived from the Latin word putare,
which means "to think". A putative crime is, therefore, a crime that does not actually
exist (because there is no rule of law stating that that particular type of conduct constitutes
a crime), but which X thinks does exist. The crime only "exists" in X's mind, that is, in what
he thinks. A putative crime can never be punishable.
933
Activity 16.1
X thinks that to commit adultery is a crime. In reality, it is not criminal. (It may only result
in certain civil-law or private-law consequences, in that it may give the spouse of an adulterous party a ground for suing for divorce.) Believing adultery to be a crime, X commits
adultery. Does X commit any crime?
17
Feedback
X does not commit any crime. More particularly, he cannot be convicted of an attempt to
commit adultery. The impossibility "lies in the law, not in the facts".
Activity 16.2
X is charged with theft. The crime of theft cannot be committed in respect of res derelictae
(i.e. property abandoned by its owners with the intention of ridding themselves of it). X,
a tramp, sees an old mattress lying on the pavement. The mattress was left by its owner
next to his garbage container in the hope that the garbage removers would remove it.
X appropriates the mattress for himself. X knows that the owner had meant to get rid of
the mattress. However, X erroneously believes that the crime of theft is defined by law in
such a way that it can be committed even in respect of property that has been abandoned
by its owner (a res derelicta). Does X commit attempted theft?
Feedback
18
Since the mattress was, in fact, a res derelicta, it was impossible for X to steal it. The set of facts
therefore describes a situation of an attempt to commit the impossible. X was not mistaken
about any facts, but only about the contents of the law. This is a case of a putative crime,
that is, a crime that exists only in X's mind. The "rule in Davies" (i.e. the rule that impossible
attempts are punishable) does not apply to putative crimes. Therefore, X cannot be convicted
of attempted theft.
215
CRW2601/1
16.2.7 Voluntary withdrawal
934
(Criminal Law 249-251)
To begin with, it is generally accepted that there is no punishable attempt if X voluntarily
abandons her criminal plan of action at a stage when her actions can be described only as
preparations, in other words, before her conduct constitutes the commencement of the
consummation. The question is simply whether a withdrawal after this stage (the commencement of the consummation stage), but before completion of the crime, constitutes a defence
to a charge of attempt. The courts have answered this question negatively.
935
y In Hlatwayo 1933 TPD 441, X was a servant who put caustic soda into her employers'
porridge, intending to poison them. She noticed that the caustic soda discoloured the
porridge and so threw the mixture away. She was nevertheless convicted of attempted
murder. The court held that her acts had already reached the stage of consummation and
that her change of heart did not exclude her liability for attempt.
y In B 1958 (1) SA 199 (A), the Appellate Division accepted that it was held in Hlatwayo that
voluntary withdrawal was no defence, and that that decision was correct.
y In Du Plessis 1981 (3) SA 382 (A) 410 AB, the Appellate Division stated: "If that change of mind
occurred before the commencement of the consummation, then the person concerned
cannot be found guilty of an attempt, but if it occurred after the commencement, then
there is an attempt and it does not avail the person concerned to say that he changed his
mind and desisted from his purpose."
(In Criminal Law 249-251, the author, Snyman, criticises the courts' decisions relating to
voluntary withdrawal and argues that X's conduct in this type of situation ought not to be
punishable. If you are interested, you may read Snyman's arguments, but for the purposes
of this module, you won't be examined on them in the examination.)
936
16.2.8 Intention
A person can be found guilty of attempt only if she had the intention to commit the particular
crime that she pursued. Intention may, of course, be present in the form of dolus eventualis.
In S v Nyalungu 2013 2 SACR 99 (T), X was convicted of rape and attempted murder on the
basis that, at the time of the rape, he was aware of the fact that he was HIV-positive and did
not take any protective measures. The court held that the principles of our common law
were wide enough to cover a situation where a virus was intentionally transferred to another
person. The fact that the complainant refused to subject herself to an HIV test because of her
fear of the result was regarded by the court as irrelevant. As long as the act was performed
by the accused with the intention of bringing about a particular result, and that result did
not ensue for some extraneous reason, an attempt was nonetheless proven.
937
Negligent attempt is notionally impossible: a person cannot attempt, that is, intend, to be
negligent. There is, therefore, no such thing as an attempt to commit culpable homicide
(Ntanzi 1981 (4) SA 477 (N)), because the form of culpability required for culpable homicide
is not intention, but negligence.
938
Are these forms of attempt?
Consider the following examples:
a. X wants to steal a cell phone from Y’s pocket, but Y’s pocket is empty.
b. X wants to break into a safe to steal the contents using a screwdriver, but the screw
driver breaks.
216
c. X thinks he has received stolen property to look after, but the goods are not stolen.
d. X agrees to have consensual sexual intercourse with Y, whom he believes is 15 years
old, but Y is in fact 18 years old.
939
Is X guilty of attempt in any of the examples provided above? What do you think?
16.3 CONSPIRACY
(Criminal Law 252-254)
940
You need only read this section. You may be assessed on it in assignments, but
you do not have to study it for examination purposes.
1. In South Africa, conspiracy to commit a crime is not a common-law crime, but a statutory
crime. Section 18(2)(a) of the Riotous Assemblies Act 17 of 1956 criminalises conspiracies
to commit crimes. The relevant parts of this section read as follows:
Any person who ... conspires with any other person to aid or procure the commission
of or to commit ... any offence ... shall be guilty of an offence.
2. This provision does not differentiate between a successful conspiracy (i.e. one followed by
the actual commission of the crime) and one not followed by any further steps towards
the commission of the crime. Theoretically, it is possible to charge and convict people of a
contravention of this provision, even though the crime envisaged was indeed subsequently
committed. Our courts have, however, quite correctly indicated that this provision should
be utilised only if there is no proof that the envisaged crime was, in fact, committed
(Mshumpa 2008(1) SACR 126 (EC)).
3. Nobody is ever charged with or convicted of simply "conspiracy" and no more. The charge
and conviction must be one of conspiracy to commit a certain crime (such as murder or assault).
4. The act in the crime of conspiracy consists in the entering into an agreement to commit
a crime or crimes (Moumbaris 1974 (1) SA 681 (T) 687).
5. While the parties are still negotiating with one another, there is not yet a conspiracy.
6. The crime is completed the moment the parties have come to an agreement, and it is
not necessary for the state to prove the commission of any further acts in execution
of this conspiracy (Alexander 1965 (2) SA 818 (C) 822).
7. The conspiracy need not be express; it may also be tacit (B 1956 (3) SA 363 (EC) 365).
8. The parties need not agree about the exact manner in which the crime is to be committed
(Adams 1959 (1) SA 646 (Sp C)).
9. The mere fact that X and Y both have the same intention does not mean that there is
a conspiracy between them. There must be a definite agreement between at least two
persons to commit a crime (Cooper 1976 (2) SA 875 (T) 879). This idea is often expressed
by the statement that "there must be a meeting of the minds". Thus, if X breaks into a
house and Y, completely unaware of X's existence and, therefore, also his plans, breaks
into the same house on the same occasion, neither of them is guilty of conspiracy, even
though they both have the same intention.
10. The conspirators need not be in direct communication with one another. If two or
more persons unite in an organisation with the declared purpose of committing a crime
217
CRW2601/1
or crimes, there is a conspiracy. Any person who joins such an organisation while aware
of its unlawful aims, or remains a member after becoming aware of these aims, signifies
– by her conduct – her agreement with the organisation's aims, thereby committing
conspiracy (Moumbaris supra 687).
11. The intention requirement can be subdivided into two components, namely
a. the intention to conspire
b. the intention to commit a crime or to further its commission
12. It goes without saying that there can be a conspiracy only if more than one party is
involved. You cannot conspire with yourself to commit a crime.
13. As far as the punishment for conspiracy is concerned, the section that criminalises
conspiracy (i.e. s 18(2)(a) of Act 17 of 1956) provides that somebody convicted of conspiracy
may be punished with the same punishment as the punishment prescribed for the
commission of the actual crime envisaged. However, this provision must be interpreted
as only laying down the maximum punishment that may be imposed for the conspiracy.
In practice, a person convicted of conspiracy to commit a crime normally receives a
punishment that is less severe than the punishment that would have been imposed had
the actual crime been committed. The reason for this is that conspiracy is only a preparatory
step towards the actual commission of the (main) crime. In the case of conspiracy, the
harm that would have been occasioned by the commission of the actual completed crime
has not materialised. (For the same reason, the punishment for an attempt to commit a
crime is, as a rule, less severe than that for the completed crime.)
16.4 INCITEMENT
(Criminal Law 255-263)
941
You need only read this section. You may be assessed on it in assignments, but
you do not have to study it for examination purposes.
1. In South Africa, incitement to commit a crime is not a common-law crime, but a statutory
crime. Section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 criminalises incitement
to commit crimes. The relevant parts of this section read as follows:
Any person who ... incites, instigates, commands or procures any other person to commit any offence ... shall be guilty of an offence.
2. As in the case of conspiracy, X ought to be charged with, and convicted of, incitement
only if there is no proof that the crime to which she incited Y has indeed been
committed. If the main crime has indeed been committed, X is a co-perpetrator or
accomplice in respect of such crime (Khoza 1973 (4) SA 23 (O) 25).
3. Nobody is ever charged with or convicted simply of "incitement" and no more. The charge and
conviction must be one of incitement to commit a certain crime (such as murder or assault).
4. The purpose of the prohibition of incitement to commit a crime is to discourage people
from seeking to influence others to commit crimes (Zeelie 1952 (1) SA 400 (A) 405).
5. In some older decisions, the view was expressed that X can be guilty of incitement only if
the incitement contains an element of persuasion; in other words, there must be an initial
unwillingness on the part of Y, which is overcome by argument, persuasion or coercion (C
218
1958 (3) SA 145 (T) 147). However, in Nkosiyana 1966 (4) SA 655 (A), the Appellate Division
held that no such element of persuasion is required.
6. In Nkosiyana supra, X had suggested to Y that they murder Mr Kaiser Matanzima of the
Transkei. However, Y was, in fact, a policeman who suspected X of trying to murder Mr
Matanzima and wanted to trap X. X was unaware of the fact that Y was a policeman. X
was charged with incitement to commit murder. The Appellate Division held that the
fact that Y was a policeman, who at no time was susceptible to persuasion, did not stand
in the way of a conviction of incitement. Incitement can, therefore, be committed even
in respect of a police trap in which the police officer involved has no intention of ever
committing the actual crime, but who simply wants to trap the inciter.
7. In Nkosiyana supra, an inciter was described as somebody "who reaches out and seeks
to influence the mind of another to the commission of a crime". Whether the other
person (Y) is capable of being persuaded is immaterial. Neither do the means X uses
to influence, or try to influence, Y carry any weight. The emphasis is therefore on X's
conduct, and not that of Y.
8. The incitement may take place either explicitly or implicitly.
9. If the incitement does not come to Y's knowledge, X cannot be convicted of incitement,
but may be guilty of attempted incitement, as in the case where X writes an inflammatory
letter to Y, but the letter is intercepted before it reaches Y.
10. As far as the punishment for incitement is concerned, the section that criminalises incitement
(i.e. s 18(2)(b) of Act 17 of 1956) provides that somebody convicted of incitement is punishable
with the same punishment as the punishment prescribed for the commission of the
actual crime envisaged. However, this provision must be interpreted as only laying down
the maximum punishment that may be imposed for the incitement. In practice, somebody
convicted of incitement to commit a crime normally receives a punishment that is less severe
than the punishment that would be imposed had the actual crime been committed. The
reason for this is that incitement is only a preparatory step towards the actual commission
of the (main) crime. In the case of incitement, the harm that would be occasioned by the
commission of the actual completed crime has not yet materialised.
SUMMARY
Attempt
1. See the above definition of the rules relating to attempt.
2. There are four forms of attempt, namely completed attempt, interrupted attempt, attempt
to commit the impossible, and voluntary withdrawal.
3. In cases of completed attempt, X has done everything she set out to do in order to commit
the crime, but the crime is not completed, for example where X fires a gun at Y, but the
shot misses Y.
4. In interrupted attempt, X's actions are interrupted so that the crime cannot be completed.
In these cases, X is guilty, provided that her actions are no longer mere acts of preparation,
but, in fact, constitute acts of consummation.
5. In cases of attempt to commit the impossible, it is impossible for X to complete the crime,
because either the means she uses cannot bring about the desired result or the object in
respect of which the act is committed is factually impossible to attain.
6. In Davies 1956 (3) SA 52 (A), it was held that a subjective approach towards attempts
to commit the impossible should be followed, and that a person is guilty of attempted
942
219
CRW2601/1
abortion if he aborts a dead foetus in circumstances in which he believes that it is still
alive, even though an abortion can be committed only in respect of a live foetus.
7. There is an exception to the general rule laid down in Davies: A person cannot be guilty
of an attempt to commit the impossible where such person is, as a result of a mistake
of law, under the erroneous impression that the type of conduct she is engaging in is
declared criminal by the law, whereas, in fact, it is not criminal. In legal terminology, such
a situation is known as a putative crime.
8. In cases of voluntary withdrawal, X, of her own accord, abandons her criminal plan of
action. According to our courts, such withdrawal is no defence to a charge of attempt if
it occurs after the commencement of the consummation.
9. Intention is always a requirement for a conviction of attempt.
Conspiracy
1. Conspiracy to commit a crime is punishable in terms of section 18(2) of Act 17 of 1956.
2. The act of conspiracy consists in entering into an agreement to commit a crime.
3. The crime is completed the moment the parties have come to an agreement, and it is
not necessary for the state to prove the commission of any further acts in execution of
the conspiracy.
4. The intention requirement consists in the intention to conspire as well as the intention
to commit a crime or to further its commission.
943
Incitement
1. Incitement to commit a crime is punishable in terms of section 18(2) of Act 17 of 1956.
2. X ought to be charged with, and convicted of, incitement only if there is no proof that
the crime to which she incited another has indeed been committed.
3. A person may be convicted of incitement even though there is no proof that she persuaded
the incitee to commit the crime.
944
Further reading
For more information on attempt, conspiracy and incitement, read:
• Burchell Principles of Criminal Law (2016) 527–565.
• Kemp, Walker, Palmer, Baqwa, Gevers, Leslie & Steynberg Criminal Law in South Africa
(2018) 279–289.
Self-assessment
16
(1) Define the most important rules relating to the crime of attempt.
(2) Name the four forms of criminal attempt and briefly explain what each entails.
(3) Discuss, with reference to examples and decisions, the difference – in the case of an interrupted attempt – between acts of preparation and acts of consummation.
(4) Explain the rules relating to an attempt to commit the impossible.
(5) What is meant by a putative crime? Explain.
(6) Is voluntary withdrawal a defence to a charge of attempt? Explain.
(7) Discuss the crime of conspiracy.
(8) Discuss the crime of incitement.
220
ADDENDUM A
945
Construction of criminal liability
Note:
946
1. The diagram below represents a standard crime. There are exceptions to this standard
model. Strict liability crimes, for example, dispense with the requirement of culpability.
2. The reason compliance with the principle of legality is indicated with a dotted line is the
following: if a person's liability for a well-known crime such as murder, theft or rape has to
be determined, it is so obvious that such a crime is recognised in our law that it is a waste
of time to enquire whether there has been compliance with the requirement of legality.
221
CRW2601/1
ADDENDUM B
Table of defences and their effect
947
Note: This table does not contain a complete list of every conceivable defence that an accused can raise when charged with a crime.
948
Every crime has different definitional elements, and it is impossible here to set out every possible defence based upon the absence of a particular element in the definitional elements
of a particular crime (e.g. "premises" in housebreaking, or "property" in theft).
949
The only defences included in this table are those based upon or related to the absence of
a general prerequisite for liability in terms of the general principles of criminal law.
950
The purpose of this table is to point out the relationship between a particular defence and
the corresponding general prerequisite for liability.
951
Defences of a procedural nature or those related to the law of evidence, as well as the general
defence known as an alibi, have been left out for obvious reasons.
952
If there is an asterisk in the third column after the verdict ''not guilty", it means that a court
would not readily find an accused not guilty, but only if the circumstances are fairly exceptional.
953
954
Defence
Automatism ("sane", not
"insane")
957
Act does not comply with
definitional elements
960
Act not a sine qua non
for result, or not an adequate casue of resultant
condition, or novus actus
interveniens
963
Grounds of justification,
such as private defence,
necessity, consent
966
969
972
Youth
Mental illness
Intoxication
975
955
958
General prerequisite for
liability placed in issue
Act
Not guilty
959
Requirement that conduct
should comply with definition of the proscription
961
Requirement of causation
964
967
970
976
Unlawfulness
Criminal capacity
973
Verdict if defence is
successful
956
Criminal capacity
Act
962
Not guilty
Not guilty (but possibly
guilty of a less serious formally defined crime, such
as assault)
965
968
971
Not guilty
Not guilty
Not guilty
974
Not guilty* of crime
charged, but guilty of
contravening s 1 of Act 1
of 1998
977
222
Criminal capacity
978
980
Intoxication
If charged with crime
requiring intent: result
or circumstances not
foreseen
Intent required for crime
charged
983
981
If charged with crime
requiring intent: mistake,
either of fact or of law
982
If charged with crime
requiring negligence:
conduct was reasonable,
i.e. did not deviate from
conduct to be expected of
reasonable person in the
circumstances; OR unlawful result or circumstances
not foreseeable
987
Intention
Not guilty* of crime
requiring intent or contravention of s 1 of Act 1
of 1998, but, if charged
with murder, may be
found guilty of culpable
homicide
984
Not guilty (at least on
main charge – possibly
guilty of less serious
crime)
985
988
Not guilty* of crime
charged, but guilty of
contravening s 1 of Act 1
of 1998
979
986
Negligence
Not guilty
989
223
CRW2601/1
224
Snyman’s
&ULPLQDO/DZ
6(9(17+(',7,21
Sn
Snyym
ma
mann’
n’ss
Criim
Cr
min
mi
nal
al Law
aw
SE
EV
VEN
NT
TH ED
DIT
TIO
ON
N
U dated by
Upd
b
SV H
SV
HOCT
TO
OR
R
B
BA LLB
L B LL
LM (UC
( CT) DJur
D ris (L
Leidden)) PG
G Dipp (Latin) (W
Wales Trrinityy Saaint Dav
vid)
Proffesso
P
or of
o Laaw, Unniversity
ty off Kw
waZ
Zulu
u-Naatal
Addvoccatee off the Higgh Cou
C urt of
o Soouthh Affricaa
Orriginnall texxt by
b
C SN
CR
NY
YM
MA
AN
N
BA
A LL
LD (UO
OFS))
R
Reseearcch Fell
F low and
d forrmeer Profe
P fesso
or of Crim
C minal an
nd Proc
P ceduurall La
aw,
U iverssityy of Sou
Uni
S uth Afri
A ica
Addvoccatee off the Higgh Cou
C urt of
o Soouthh Affricaa
M
Mem
mbeers of
o th
he L
LexissNexxis Gro
G up w
worrldw
wide
Sou
uth Afri
A ca
JOH
HANN
NESBUR
RG
CAPE TOW
WN
DURBA
U AN
A
Ausstrallia
LexxisN
Nexiss (Ptty) Ltd
L
ww
ww.leexisnnexiis.coo.za
Buiildinng 8,, Countrry Club
C
Estaate Offic
O ce Park,
P , 21 Wo
oodlaandss Drrive, Wo
oodm
meadd, 21191
Firsst Flloor,, Greeat Wes
W sterfford,, 240
0 Main Roa
R ad, R
Rond
deboosch, 7700
2155 Petter M
Mok
kaba Roaad (N
Nortth Ridge
R e Rooad), Moorningsiide, Durrbann, 40
001
LexxisN
Nexiss, CHAT
H SWO
OOD, Ne
ew South
S h Wales
W s
A
Ausstriaa
LexxisN
Nexiss Veerlagg AR
RD Orac
O c, VIENN
I NA
B
Ben
neluxx
Can
nadaa
LexxisN
Nexiss Beneluux, AMSSTER
RDAM
M
LexxisN
Nexiss Caanada, MARK
KHA
AM, Onta
O ario
Chiina
LexxisN
Nexiss, BEIJIN
E NG
F
Fra
ance
Gerrmany
LexxisN
Nexiss, PARIS
A S
LexxisN
Nexiss Geermaany, MÜNST
Ü TER
H
Hon
ng Kong
K g
LexxisN
Nexiss, HONG
O G KONG
O
IIndia
IItaly
y
LexxisN
Nexiss, NEW
E DEL
LHI
Giuuffrèè Ediitoree, MILAN
N
JJapan
LexxisN
Nexiss, TOKY
O YO
K
Korrea
M
Mallayssia
N
New
w Zeealand
LexxisN
Nexiss, SEOUL
E L
Pola
and
LexxisN
Nexiss Polandd, WARSSAW
W
Sing
gapoore
LexxisN
Nexiss, SIN
NGA
APOR
RE
U
Uniited Kin
ngdoom
LexxisN
Nexiss, LOND
O DON
U
Uniited States
LexxisN
Nexiss, DAYT
A TON, Ohiio
LexxisN
Nexiss, KUAL
U LA LUMP
PUR
LexxisN
Nexiss, WELLLING
GTON
N
© CR
C Snym
S man 20220
ISBN 978
9 0 63390 00987
7 2 (soft
( ftbacck)
9 0 63390 00988
978
8 9 (e-b
( ookk)
F
First edditionn 19984
R
Rep
printed 1987
1 7, 19990
Seco
ond edittion 19991
R
Rep
printed 1992
1 2, 19993
Thirrd edditioon 1995
R
Rep
printed 1996
1 6, 19997, 19998, 2000
2 0, 20001
Four
F rth editio
e on 22002
2
Repr
R rinteed 20003,, 200
05, 2006
2 6, 20007
Fifth
F h ediitionn 20008
Sixth
S h edditionn 20014
Repr
R rinteed 20016,, 2017
Cop
pyrigght subs
s sists in this
t
worrk. No
N ppartt of this woork m
may be reprroduucedd in any forrm or
o byy an
ny mean
m ns witho
w out the
t
ppublisheer’s wriittenn perrmisssionn. Any
A uunau
uthooriseed reeprooductionn of this woork will
w connstituute a co
opyriight infr
fringgemeent
and rendder the
t doer
d r liab
ble unde
u er both civil andd criminnal llaw.
maade tto ensu
W
Whiilst everry effor
e rt haas been
b
e ure thhat the info
ormation puublished
d in this work
w
is accu
a uratee, thhe edditors,
auth
hors,, wrriterss, coontriibuttors, pubblishhers andd priinterrs taake no resp
r ponsiibiliity for
f any
a losss or dam
magee sufffereed bby any
ppersson as
a a resuult oof the reliance upon
u n thee info
form
matioon coontainedd theereinn.
PREFACE
This work first appeared in 1984. My role in the production of this edition was to update the
previous edition to incorporate changes to the law since the work was last published in 2014.
With the gracious acquiescence of the author, I have taken some liberties in extending my role
to encompass changing the text in respect of certain topics. In some instances therefore the
views that are expressed in this edition differ from those expressed in previous editions.
Nevertheless, the content of the manuscript is very much Snyman’s Criminal Law.
The outstanding attribute of Kallie Snyman’s scholarship, as richly demonstrated over the
previous editions of this work, is the systematic and analytic treatment of the doctrines and
rules of substantive criminal law. You may disagree with Snyman’s views, but you cannot
ignore them. The previous editions have played an enormous role in shaping both the application of criminal law in the courts and the instruction of thousands of intending lawyers
encountering his work at university. I have tried to maintain all the fine qualities of this work,
while tweaking some aspects, in the hope that the seventh edition will continue to provide the
expert analysis for which this work has become renowned.
Criminal law reflects the character and travails of the society it serves. South Africa continues to struggle to throw off the shackles of its oppressive apartheid history, even as the
Constitution is relied upon to challenge legal rules which restrict rights. The enduring context
for such constitutional challenges is the blunt power of the state, as exercised through the
criminal justice system. Bound up with this contention is the fact of the exclusive historical
narrative in the development of some of the rules of criminal liability and specific crimes – in
short, criminal law’s colonial heritage. While there can be little doubt that current South African criminal law has developed its own character, and is in no way beholden to the systems
out of which it developed, little attention has been paid to existing customary criminal law
sources. Other voices need to be heard. Even a system of criminal justice as vibrant and rich as
that of South Africa cannot ignore the use that was made of criminal law as an instrument of
oppression, and in denying the basic dignity of individuals, in our apartheid past.
A question that arises is whether a legacy of the evils of apartheid remains in some of the
rules and foundations of South African criminal law. A further debate concerns the extent to
which Bill of Rights jurisprudence can and ought to be transformative of common-law and
legislative markers of criminal liability, in the context of the very real crime control concerns
which exist in South Africa today. This work can hardly provide all the answers to these
searching questions. What it seeks to do, however, is to start to engage with them, so that
readers can draw their own conclusions.
This is an exciting time to be working in criminal law. Fundamental decisions will be made
about the balance between competing policy concerns. It is hoped that this work will continue
to serve the debate, as the future and functioning of the criminal law continue to be shaped by
the courts, legislature and writers. The greater context always needs to be borne in mind: the
v
vi
SNYMAN’S CRIMINAL LAW
rules and doctrines of criminal liability establish a basis for blameworthiness – that is, for
justifying the state’s being allowed to infringe the rights of the individual through punishment.
No one should be punished unless he or she is indeed blameworthy. This argument has been
made throughout this work.
Legal sources up to and including those available at the end of November 2020 have been
referred to in this edition.
SV Hoctor
Hilton
December 2020
CONTENTS
PAGE
PREFACE ..............................................................................................................................
v
PART ONE: GENERAL PRINCIPLES
I
INTRODUCTION
A Introductory topics ................................................................................................
B The sources of criminal law..................................................................................
C Theories of punishment ........................................................................................
D Aspects of the criminal justice system .................................................................
E Criminal liability: A summary..............................................................................
F The principle of legality .......................................................................................
3
5
9
18
25
31
II
CONDUCT
A Conduct (act or omission) ....................................................................................
B Omissions .............................................................................................................
C Possession .............................................................................................................
43
49
52
III
THE DEFINITIONAL ELEMENTS
A Compliance with the definitional elements ..........................................................
B Causation ..............................................................................................................
59
65
IV
UNLAWFULNESS (JUSTIFICATION)
A The concept of unlawfulness ................................................................................ 79
B Private defence ..................................................................................................... 85
C Necessity ............................................................................................................... 95
D Consent ................................................................................................................. 102
E Presumed consent ................................................................................................. 106
F Official capacity ................................................................................................... 107
G Use of force and homicide during arrest .............................................................. 108
H Obedience to orders .............................................................................................. 112
I Impossibility ......................................................................................................... 116
J Excursus: Disciplinary chastisement .................................................................... 117
K Excursus: Trifling nature of act as a defence ....................................................... 121
L Excursus: Entrapment is not a ground of justification ......................................... 122
V
CULPABILITY
A Requirement of culpability in general .................................................................. 127
B Criminal capacity .................................................................................................. 136
(i) The concept of criminal capacity ............................................................ 136
(ii) Non-pathological criminal incapacity ..................................................... 139
vii
viii
SNYMAN’S CRIMINAL LAW
PAGE
(iii) Mental illness .......................................................................................... 149
(iv) Immature age .......................................................................................... 156
C Intention ................................................................................................................ 159
D Negligence ............................................................................................................ 182
E Effect of intoxication ............................................................................................ 192
F Effect of provocation ............................................................................................ 204
G Strict and vicarious liability.................................................................................. 208
(i) Strict liability .......................................................................................... 208
(ii) Vicarious liability.................................................................................... 212
VI
CRIMINAL LIABILITY OF CORPORATE BODIES .............................................. 215
VII PARTICIPATION AND ACCESSORIES AFTER THE FACT
A General.................................................................................................................. 219
B Perpetrators ........................................................................................................... 222
C Accomplices ......................................................................................................... 233
D Accessories after the fact ...................................................................................... 237
VIII ATTEMPT, CONSPIRACY AND INCITEMENT
A General.................................................................................................................. 241
B Attempt ................................................................................................................. 241
C Conspiracy ............................................................................................................ 252
D Incitement ............................................................................................................. 255
PART TWO: SPECIFIC CRIMES
CRIMES AGAINST THE STATE, PUBLIC ORDER
AND THE ADMINISTRATION OF JUSTICE
IX
CRIMES AGAINST THE STATE AND PUBLIC ORDER
A High treason .......................................................................................................... 267
B Sedition ................................................................................................................. 274
C Public violence ..................................................................................................... 277
X
CRIMES AGAINST THE ADMINISTRATION OF JUSTICE
A Contempt of court ................................................................................................. 281
B Defeating or obstructing the course of justice ...................................................... 292
C Perjury .................................................................................................................. 296
D Subornation of perjury .......................................................................................... 299
E Making conflicting statements under different oaths
(contravention of section 319(3) of Act 56 of 1955) ............................................ 299
F Making false statements in an affidavit
(contravention of section 9 of Act 16 of 1963) .................................................... 301
G Escaping from custody ......................................................................................... 302
CRIMES AGAINST THE COMMUNITY
XI
SEXUAL OFFENCES
A General.................................................................................................................. 305
B Rape ...................................................................................................................... 307
C Compelled rape ..................................................................................................... 319
CONTENTS
ix
PAGE
D Sexual assault ....................................................................................................... 320
E Compelled sexual assault...................................................................................... 327
F Compelled self-sexual assault .............................................................................. 328
G Compelling another to watch sexual acts ............................................................. 329
H Exposing genital organs, anus or breasts (“flashing”).......................................... 331
I Displaying child pornography .............................................................................. 332
J Engaging sexual services for reward (prostitution) .............................................. 332
K Incest ..................................................................................................................... 335
L Bestiality ............................................................................................................... 338
M Sexual act with a corpse ....................................................................................... 339
N Sexual offences against children .......................................................................... 340
O Sexual offences against mentally disabled persons .............................................. 346
XII CRIMES AGAINST THE FAMILY
A Bigamy.................................................................................................................. 349
B Common-law abduction ....................................................................................... 351
XIII CRIMES AGAINST PUBLIC WELFARE
A Corruption ............................................................................................................. 355
B Extortion ............................................................................................................... 369
C Drug offences ....................................................................................................... 372
D Unlawful possession of firearms or ammunition.................................................. 377
E Concealment of births ........................................................................................... 382
F Public indecency ................................................................................................... 383
G Violating a grave .................................................................................................. 385
H Violating a corpse ................................................................................................. 386
CRIMES AGAINST A PERSON
XIV CRIMES AGAINST LIFE
A Murder .................................................................................................................. 387
B Culpable homicide ................................................................................................ 391
C Administering poison or another noxious substance ............................................ 392
D Exposing an infant ................................................................................................ 393
XV CRIMES AGAINST BODILY INTEGRITY
A Assault .................................................................................................................. 395
B Intimidation .......................................................................................................... 401
C Pointing a firearm ................................................................................................. 403
XVI CRIMES AGAINST DIGNITY AND REPUTATION
A Crimen iniuria ...................................................................................................... 407
B Criminal defamation ............................................................................................. 412
XVII CRIMES AGAINST FREEDOM OF MOVEMENT
A Kidnapping ........................................................................................................... 417
CRIMES AGAINST PROPERTY
XVIII CRIMES RELATING TO APPROPRIATION OF PROPERTY
A Theft...................................................................................................................... 421
B Removal of property for use ................................................................................. 443
x
SNYMAN’S CRIMINAL LAW
PAGE
C Robbery ................................................................................................................ 448
D Receiving stolen property ..................................................................................... 452
E Inability to give account of possession of goods suspected of
being stolen (contravention of section 36 of Act 62 of 1955) .............................. 454
F Receiving stolen property without reasonable cause
(contravention of section 37 of Act 62 of 1955) .................................................. 458
XIX FRAUD AND RELATED CRIMES
A Fraud ..................................................................................................................... 461
B Forgery and uttering ............................................................................................. 469
C Theft by false pretences ........................................................................................ 471
XX CRIMES RELATING TO DAMAGE TO PROPERTY
A Malicious injury to property ................................................................................. 475
B Arson .................................................................................................................... 478
C Housebreaking with intent to commit a crime ..................................................... 479
D Possession of housebreaking implements ............................................................ 486
E Trespass ................................................................................................................ 487
SCHEDULES ........................................................................................................................ 491
BIBLIOGRAPHY ................................................................................................................. 495
TABLE OF CASES ............................................................................................................... 503
TABLE OF STATUTES ....................................................................................................... 535
INDEX ................................................................................................................................... 541
PART ONE
GENERAL PRINCIPLES
CHAPTER
I
INTRODUCTION
A INTRODUCTORY TOPICS
1 Criminal law and the legal system This book deals with South African criminal law.
Law is traditionally subdivided into two main categories, namely public law and private law.
In principle, public law deals with the relationship between the state as an authoritative power
and the subjects of the state, with the relationship between the different branches of state
authority (such as the different ministries of the state), and with the relationship between different states. Private law, on the other hand, may be said to regulate relationships between individuals as subjects of the legal order. The state as an authoritative power is always a party in
public law. Just as private law may be subdivided into, for example, the law of obligations, the
law of succession and the law of things, public law may be subdivided into, for example, constitutional law, administrative law and criminal law.
However, law may also be subdivided in another way, namely by distinguishing between
substantive law and formal law. Substantive (or material) law comprises substantive legal
rules setting out the rights and duties of subjects or of the state, while formal law comprises
rules setting out the procedure or methods by which the rules of substantive law are enforced.
In terms of this subdivision, both public and private law form part of substantive law, whilst
formal or procedural law may be further subdivided into the law relating to criminal procedure,
that relating to civil procedure and the law of evidence. Criminal law forms part of substantive
law. Criminal procedure is, from the point of view of criminal law, an important auxiliary
branch of the law. It lays down the procedure by which alleged criminals are brought before
court and tried for their alleged crimes. Some other important branches of law and related
spheres of study which may influence or which may be influenced by criminal law are the law
of delict, the law of evidence, criminology and penology. The latter two are, in South Africa in
any event, not regarded as pure legal sciences.
2 Crimes and delicts Whilst there are many similarities between crimes and delicts, there
are nevertheless also fundamental differences between the two. It is precisely when a crime is
compared with a delict that a crime’s fundamental characteristics come to the fore. Both
crimes and delicts may be described as unlawful, blameworthy acts or omissions. Broadly
speaking, a delict is an unlawful, blameworthy act or omission resulting in damage to another
and in a right on the part of the injured party to compensation. The injured party may, if he so
wishes, institute an action for damages against the offender. A crime, on the other hand, is
unlawful, blameworthy conduct punishable by the state.
One and the same act may constitute both a crime and a delict. If X assaults Y, Y can claim
damages from X on the grounds of delict. He can also lodge a complaint with the police
against X on the grounds of assault, which may lead to X’s conviction and punishment for the
3
4
SNYMAN’S CRIMINAL LAW
crime of assault. This, however, does not mean that all delicts also constitute crimes. Two
examples of conduct constituting a delict but not a crime are the negligent causing of damage
and seduction. Again, most crimes, for example high treason, perjury, bigamy and the unlawful possession of drugs, are not delicts.
In principle, the following distinction may be made: a crime is almost invariably injurious to
the public interest, by which is meant, the interests of the state or the community, whereas a
delict is ordinarily injurious only to private or individual interests.1 Whereas criminal law
forms part of public law, the law of delict forms part of private law, and in particular of that
part of private law which is known as the law of obligations. It is not for the person who has
suffered harm or injury as a result of the commission of a crime to decide whether the offender
should be criminally charged or not. The police may decide to proceed with a criminal charge
even if the complainant begs them not to do so. In the case of a delict, on the other hand, it is
up to the person who has suffered damage to decide whether to sue the wrongdoer for damages or not.
Perhaps the most important difference between a crime and a delict lies in the nature of the
sanctions which follow on their commission. Where a delict has been committed the guilty
party is ordered to pay compensation to the complainant, the purpose of which is to put the
complainant in the same position he would have been in had the delict not been committed.
Where someone is convicted of a crime, on the other hand, a punishment is imposed on him,
with a view to retribution, the prevention of crime, deterrence or the rehabilitation of the
offender. Generally speaking, a convicted person will suffer some form of pain or misfortune
such as imprisonment or a fine. Furthermore, it is as a rule the state which prosecutes in a
criminal case. Although provision is made in the Criminal Procedure Act2 for private prosecutions, these are extremely rare in South Africa; the right to prosecute privately is really nothing more than a “safety valve” left open to the aggrieved individual where the state refuses to
prosecute.
If a person is charged in a court with having committed a crime, the trial is governed by the
rules of criminal procedure. But if someone claims damages on the ground of delict, the trial is
governed by the rules of civil procedure.
To summarise, the distinguishing features of a crime can be described as follows: it is conduct
which is legally forbidden, which may, in principle, be prosecuted only by the state, and which
always results in the imposition of punishment.
The most important points of difference between a crime and a delict can be summarised as
follows:
Crimes
Delicts
1 Directed against public interests
Directed against private interests
2 Form part of public law
Form part of private law
3 State prosecutes
Private party institutes action
4 Result in the imposition of
punishment by the state
Result in the guilty party being ordered to pay
damages to the injured party
continued
________________________
1
2
The last part of this statement is subject to the following exception: it is possible for the state to be a plaintiff or a defendant in a delictual claim in private law matters where it figures not as the bearer of authority
but on an equal footing with the individual.
Act 51 of 1977. See ss 7–17.
5
INTRODUCTION
Crimes
Delicts
5 State prosecutes perpetrator
irrespective of the desires of
private individual
Injured party can choose whether he wishes to
claim damages or not
6 Trial governed by rules of
criminal procedure
Trial governed by rules of civil
procedure
3 “Crimes” and “offences” In South Africa criminally punishable conduct is sometimes
referred to as a “crime” and sometimes as an “offence”. The standard practice of referring to
conduct prohibited by the common law as “crimes”, and conduct prohibited by statute as
“offences”, will be adhered to in the discussion which follows.
B THE SOURCES OF CRIMINAL LAW
1 Three main sources of our criminal law The three most important sources of our criminal
law are first, legislation, secondly, the common law, and thirdly, case law. However, the second
and third sources overlap, since the contents of the common law have to a very large extent
been set out in our reported (ie, published) case law.
In addition to these sources one can identify certain further sources of influence which have
left their mark on our criminal law, and which will be described briefly hereafter. These influences are English law, German criminal-law theory, and the Bill of Rights in the Constitution.
2 Legislation In considering the sources of our criminal law, legislation must occupy the
first place, since an Act creating a crime or containing a provision relating to the determination of criminal liability must obviously be applied and receive priority over the provisions of
common law. Unlike our criminal procedure, our substantive criminal law has not yet been
codified, and it does not seem that it will be within the foreseeable future.3 Until now the
South African legislature has been silent on the general principles of criminal law, with the
important exception of the rules governing the defence of mental illness, which were set out in
sections 77 to 79 of the Criminal Procedure Act 51 of 1977. The best-known specific crimes,
such as murder, assault and theft, are nowhere statutorily defined, and their requirements must
therefore be sought in our common law. Nevertheless, the South African legislature has
created a vast number of statutory crimes. In a book of this scope it is impossible to pay
attention to all of them. Only some of the more important ones will be discussed.
The Constitution of the Republic of South Africa, 1996 towers above all legislation in importance. Chapter 2 of the Constitution contains a Bill of Rights. All rules of law, irrespective
of whether they are contained in legislation or in common law, must be compatible with this
Bill of Rights. If a rule is incompatible with the Bill of Rights, it may be declared null and
void. This applies, of course, also to the rules governing substantive criminal law.
3 Case law The role of the courts in describing and developing our criminal law is vital.
According to the principle of judicial precedent which is followed in South Africa, as it is in
England (but not in continental Europe), a lower court is in principle bound to follow the
construction placed upon a point of law by a higher court, and a division of the High Court is
________________________
3
South Africa is one of the very few countries in the world in which the substantive criminal law has not
yet been set out in a single, comprehensive and coherent Act or Code. In 1995 Snyman drew up a Draft
Criminal Code for South Africa. For a discussion of the implications of the absence of an official criminal
code in South Africa, the advantages of codification, as well as comparisons to other countries or jurisdictions, see the Introduction to this publication.
6
SNYMAN’S CRIMINAL LAW
in principle also bound by an earlier interpretation of a point of law by the same division.
Today a practitioner who wants to find out the common law (ie, those legal rules not contained
in Acts of parliament or enactments of other subordinate legislatures) on a particular point
seldom needs to read the old authorities such a Matthaeus or Voet. Almost all the most important rules and principles of common law have, over the years, been adopted and expounded
in our case law.
4 Common law The term “common law” refers to those rules of law not contained in an
Act of parliament or of legislation enacted by some other subordinate legislature, such as a
provincial legislature, but which are nevertheless just as binding as any legislation. The common law of South Africa is Roman-Dutch law. Roman-Dutch law is that system of law which
originated about 2 500 years ago in Rome, spread during and after the Middle Ages to Western Europe and was received from the late thirteenth, up to the end of the sixteenth century, in
the Netherlands. Justinian was the emperor of the Eastern Roman empire from 527 to 565 AD.
He ordered the scattered texts of Roman law to be assembled in one compilation. This came to
be known as the Corpus Iuris Civilis. It consisted of four parts, namely (a) the Institutiones,
(b) the Digesta or Pandectae, (c) the Codex and (d) the Novellae. Criminal law was discussed
chiefly in D 48 and 49 and C 9.
In later centuries Roman law as expounded in the Justinian compilation was studied by
jurists in Italy, who were known as the Glossators and Commentators. In the course of time
the influence of this compilation spread across the whole of Western Europe. Between roughly
the thirteenth and the end of the sixteenth centuries Roman law was received also in the
Netherlands. The legal system known as Roman-Dutch law resulted from the reception of
Roman law in the Netherlands and the fusion of Roman law and local customary law.
To ascertain the content of this legal system, recourse must be had to the works of the great
Dutch jurists who wrote treatises on this legal system. The most noteworthy writers who wrote
specifically on criminal law are the following: Damhouder (1507–1581), who is known
especially for his work Praxis Rerum Criminalium; Matthaeus (1601–1654), who is known
especially for his work De Criminibus; Moorman (1696–1743), who wrote Verhandelinge
over de Misdaaden en der selver straffen, and Van der Keessel (1735–1816), who wrote
Praelectiones ad Ius Criminale. Other well-known authors who wrote comprehensive treatises
on the law in general, including criminal law, include Van Leeuwen, Huber, Voet, Van der
Linden and Hugo de Groot (Grotius). The works of the Roman-Dutch writers were written in
Latin or Dutch, but in the course of time almost all these works have been translated into
English.
The officials of the Dutch East India Company who administered the settlement at the Cape
after 1652 applied Roman-Dutch law. When for the first time in 1795 and again finally in
1806 the Cape became an English colony, English law did not replace Roman-Dutch law as
the common law. Roman-Dutch law spread to all the territories, colonies, republics and states
which in 1910 came together to form the Union of South Africa. Today it still forms the common law of the Republic of South Africa. As already pointed out, the most important rules and
principles of our common law have found their way into our case law, with the result that it is
seldom necessary to go beyond the case law and consult the old original treatises of the
Roman-Dutch authors in order to find out the contents of our law.
It is clear that the influence of the Roman-Dutch writers on criminal law in South Africa is
on the decline. The reasons for this are, first, that in the course of the last century or two our
courts have garnered what wisdom there is to be found in the old sources and, secondly, that
the technological age in which we are living is characterised by needs and problems which in
many respects differ markedly from those of two or three centuries ago. The value of historical research in law is not disputed; it may even be necessary as the starting point of a writer’s
investigation. It is nevertheless submitted that it would be wrong to equate all legal investigation with investigation into the history of law, for this would mean looking in one direction
INTRODUCTION
7
only, namely backwards. Furthermore, it must be kept in mind that the historical method of
research in criminal law is impeded by the following factors: the old authorities were usually
more concerned with the punishment to be imposed for a crime than with the prerequisites for
liability; they often contradicted one another; they did not discuss the general principles of
criminal law on a systematic basis; and because their knowledge of, among other things,
psychology and human motivation in general was limited, their views concerning important
topics such as the criminal capacity of mentally ill persons or of youths are no longer of much
value to us.
5 The influence of English law Apart from the three main sources of our criminal law
identified and discussed above, it is necessary briefly to consider certain other factors which
have influenced or still influence our criminal law. Here one is not dealing with sources of our
criminal law in the strict sense of the word, but rather with factors which have influenced and
are still influencing our criminal law to such an extent that they cannot be ignored.
Although English law did not replace Roman-Dutch law when the Cape became an English
colony, it nevertheless in the course of the nineteenth century exerted a strong influence on
our law in general and criminal law in particular. Conduct which was generally speaking
punishable under Roman-Dutch law was often punished under new headings. Examples of
these “new crimes” are the qualified assaults (assaults committed with the intention of committing another crime or of inflicting grievous bodily harm); housebreaking with the intention
of committing a crime; receiving stolen property knowing it to be stolen; culpable homicide
and fraud (which was a combination of the old crime of stellionatus and the crimina falsi).
The infiltration of English law into the then existing Roman-Dutch criminal law was in many
respects inevitable and even to be welcomed. The common law was deficient in certain respects.
The expositions of the law by the various Roman-Dutch writers were sometimes contradictory.
Descriptions of the crimes were often vague, and the writers more concerned with the punishments attendant upon crimes than with their essential elements. To compound these problems,
very few legal practitioners were able to read and understand Latin properly.
Act 24 of 1886 of the Cape, also known as the “Native Territories’ Penal Code”, embodied
a criminal code for the area formerly known as the Transkei and adjacent areas. The code is an
almost exact transcription of a criminal code drawn up by Sir James Stephen and introduced
by him in a bill in the British parliament but which was never adopted. In later years this code
exerted a considerable influence on South African criminal law as expounded by the courts,
for example, in defining the limits of the defence of provocation (section 141) and in defining
theft (section 179).
The influence of English law is especially noticeable in the appellation and subdivision of
the specific crimes, as well as in the particular requirements for these crimes. In the field of
the general principles of criminal law the influence of English law is less noticeable. Concepts
such as “unlawfulness”, “grounds of justification”, “criminal capacity” and dolus eventualis,
which have found their way into our criminal law, are unknown in English law.
6 German criminal-law theory The study of criminal law consists of more than the mere
recording of a large number of isolated rules, examples, sections of statutes, definitions of
crimes and court decisions. It comprises a systematic arrangement of this material, in other
words a search for and formulation of certain general principles to be applied in solving
individual sets of facts. The researcher may be aware of a large number of facts, examples,
cases and rules, but without the aid of general principles he will not know how to relate them
to one another. He will not be able to extricate himself from the seeming mass of casuistry
with which he is confronted. The term “criminal-law theory” denotes a method of arranging
the numerous subordinate rules, examples or cases according to a system of general principles.
Criminal-law theory is characterised by the systematic description of the requirements for
criminal liability, that is, the general requirements applicable to all crimes. Concepts which
8
SNYMAN’S CRIMINAL LAW
come to mind in this respect are, for example, “act”, “unlawfulness”, “intention” and “culpability” or “blameworthiness”.
Strictly speaking there is no legal system that can dispense with a set of general rules. Accordingly, in every legal system criminal law may be described as “scientific” or “systematic”.
Nevertheless, it is clear that as far as this aspect of the law is concerned, the approach to the
study of criminal law of continental Europe differs considerably from that of England. On the
Continent, and more particularly in Germany, the “scientific” approach is much more in evidence than in England. In fact, the approach to the study of criminal law known as “criminallaw theory” is almost invariably associated with the particular approach or method followed in
Germany (“Strafrechtswissenschaft”). This approach utilises a highly sophisticated system of
concepts in describing the general prerequisites for criminal liability. The emphasis here is on
the formulation of concepts which are universally valid, not confined to a particular place or
time and not dependent upon contingencies such as the accidents of history or the peculiarities
of individual nations or nationalities.4 This model’s method or reasoning is systematic and
analytic. The tendency is to reason deductively, that is, from the general to the particular.
This systematic continental model is also recommended for South Africa. Our legal system
has its origins in the Continent, but even leaving that consideration aside it is the Continental
model which is the most conducive to legal certainty and to a consistent application of legal
rules. Instead of having to apply, in an ad hoc fashion, a collection of incidental and often
unconnected individual examples from the past by way of analogy to a new set of facts, the
investigator or judge has at his disposal a coherent system of principles to apply to novel – and
sometimes even unusual – facts.
7 The Bill of Rights The coming into operation of the Constitution of the Republic of
South Africa 1996 has had a far-reaching influence on the whole of South African law. Chapter 2 of the Constitution contains a Bill of Rights. The provisions of the Bill of Rights apply to
the executive, the judiciary and all organs of state.5 Parliament is no longer sovereign, and all
rules of law, irrespective of whether they are contained in statutes or common law, must be
compatible with the rights contained in the Bill of Rights.
The Bill of Rights prohibits discrimination on the grounds of, among other things, race,
gender, religion or language. It also creates a large number of rights, such as, a right to dignity, life, freedom and security of the person, privacy, religion, freedom of expression, political
choice, property, education, language, and a fair trial. It also creates a number of so-called
“second generation rights”, such as a right to a clean environment, access to adequate housing,
health care services, food, water and education, but it is noticeable that no provision is made
for a right to an environment as free as possible of crime, or of a right to adequate protection
against crime.
Section 36 contains an important provision: the rights in the Bill of Rights may be limited in
terms of law of general application, but only to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality and freedom, and
taking into account certain factors set out in the section. The rights are therefore not absolute, but
may be restricted.
A new human rights culture has therefore been created which has a great influence on many
facets of the law, including substantive criminal law. In the course of the discussion in this
________________________
4
5
For this reason it is not surprising to discover the many books on German criminal law translated into
foreign languages and to discern the influence of criminal-law theory in countries as far apart as Japan in
the Far East, the Spanish- and Portuguese-speaking countries in South and Central America and, of
course, continental Europe.
S 8(1) of the Constitution of South Africa, 1996.
9
INTRODUCTION
book attention will sometimes be drawn, where applicable, to real or possible constitutional
implications on the rules of criminal law.
C THEORIES OF PUNISHMENT6
1 Introduction This book contains an exposition of those rules of law which stipulate when
a person is guilty of a crime. However, determining criminal liability is not an end in itself.
After X has been convicted of a crime he must be sentenced. A sentence usually profoundly
infringes upon X’s basic human rights, such as his right to freedom of movement, privacy and
dignity. In a society which values human rights, this infringement calls out to be justified.
The different answers given through the ages to the question of what right society has to
punish convicted offenders, together with supporting arguments, are referred to as theories of
punishment. The theories of punishment are of vital importance. They seek to answer not only
the question as to the justification of punishment (and, by extension, the justification of the
whole existence of criminal law), but also what punishment ought to be imposed in each
individual case. These theories even have a direct impact on the construction of the general
principles of liability and of the defences afforded an accused.
2 Classification of theories There are various theories of punishment, some very old, and
some quite modern. The first classification distinguishes between three theories: the absolute
theory, the relative theories and the combination or unitary theory. In the discussion which
follows, the relative theories are further classified into the preventive, deterrent and reformative theories. The deterrent theory is subdivided into individual deterrence and general deterrence.
The following diagram sets out the classification of the theories.
Theories of punishment
Absolute theory
Relative theories
Combination theory
Deterrent
Reformative
Retributive
Preventive
Individual deterrence
General deterrence
________________________
6
See generally Terblanche ch 6. For a critical perspective on the utility of the purposes of punishment for
sentencing see Terblanche in Schwikkard and Hoctor 270.
10
SNYMAN’S CRIMINAL LAW
3 Difference between absolute and relative theories A distinction is made between the
absolute theory and the relative theories of punishment. There is only one absolute theory,
namely the retributive theory, while there are a number of relative theories. According to the
absolute theory, punishment is an end in itself; it is X’s just desert. The relative theories are
also known as the utilitarian, teleological or purpose theories. According to the relative theories, punishment is only a means to a secondary end or purpose (hence the name “relative
theories”). This secondary purpose is different for each of the relative theories: for the preventive theory it is the prevention of crime; for the deterrent theory it is deterring the individual or
society from committing a crime; and for the reformative theory it is the reformation of the
criminal.
The absolute theory is of a retrospective nature: one looks only at the past, that is, at the
crime that has been committed. If, on the other hand, one follows the relative theories, one
looks at the future: the emphasis is on the object (eg, prevention or reformation) that one wishes
to achieve by means of the punishment.
4 The retributive theory
(a) Description of concept According to the retributive theory, punishment is justified because it is X’s just desert. Retribution restores the legal balance that has been disturbed by the
commission of the crime. Punishment is the payment of the account which, because of the
commission of the crime, X owes to society.
This simple truth can be explained as follows in more detail: The legal order offers every
member of society a certain advantage, while at the same time burdening him with an obligation. The advantage is that the law protects him in that it prohibits other people from infringing upon his basic rights or interests, such as his life, physical integrity and property.
However, this advantage can exist only as long as each member of society fulfils his obligation,
which consists in refraining from infringing upon other members’ rights. In other words, there
is reciprocity between the advantage and the obligation or duty. The advantage has a price,
namely the duty to refrain from injuring another’s interests. If everybody exercises the required
self-restraint and refrains from injuring another’s interests, the two scales of justice are evenly
balanced; the advantages and disadvantages are evenly distributed.
However, if a person voluntarily refrains from exercising the required self-control and commits an act harming or injuring another’s interests, in circumstances in which he could have
acted lawfully, the scales of justice are no longer in balance. X (the wrongdoer) renounces a
duty which others voluntarily take upon themselves, and in so doing he acquires an unjustifiable advantage over those who respect their duties to society. He enjoys the advantages of
the system without fulfilling his obligations. In so doing he becomes a “free rider”. According
to the philosophy underlying retribution (or “just desert”), X now has a debt which he owes to
society. By being given a punishment and by serving such punishment he pays the debt he
owes to society. In this way the “score is made even again”.7 The two scales of justice become
balanced again. Retribution is therefore the restoring of the legal balance which has been
disturbed by the commission of the crime.
The retributive theory therefore does not seek to justify punishment with reference to some
future benefit which may be achieved through punishment (such as deterrence or prevention).
Strictly speaking it is, therefore, not correct to describe retribution as a “purpose of punishment”. It is rather the essential characteristic of punishment.
________________________
7
Snyman 2001 THRHR 218 224–227; Mafu 1992 2 SACR 494 (A) 497c–d, where the court quoted the
meaning of “retribution” in the Concise Oxford Dictionary (1990): “requital for evil done”; Dressler 17;
Sendor 1994 Journal of Contemporary Legal Issues 323 337–343, 350–357.
INTRODUCTION
11
(b) The rebirth of retribution There was a time, not long ago, when retribution was not
held in high esteem in Western society. There was a belief, strengthened by the growth of new
disciplines such as sociology and psychology, that crime could successfully be combatted by
the utilitarian mechanisms of deterrence and rehabilitation. This belief proved to be illusory,
with the result that since about the seventies of the last century courts and writers, especially
in the USA, have returned to retribution as justification of punishment.8
A new analysis of the writings of philosophers of the Enlightenment, such as Immanuel
Kant, revealed the links between retribution and the essential features of justice, such as equality, freedom of will, moral responsibility, and linked to all this, human dignity.9 The essence of
retribution has come to be seen as the restoring of the legal balance which has been disturbed
by the commission of the crime. To avoid equating retribution with vengeance, there is a
tendency to replace the term “retribution” with “just desert”. The expression “restorative
justice” is also sometimes used.
(c) Retribution does not mean vengeance The word “retribution” may have more than one
meaning. Without exploring all the different meanings and nuances the term may have,10
attention is here drawn to one of the meanings sometimes assigned to it, namely that of
“vengeance”. By “vengeance” is meant the idea of an eye for an eye and a tooth for a tooth.
This is the “primitive” or “Old Testament” meaning of the word11 – the so-called lex talionis.
According to this meaning of the term the very same harm or injury inflicted by the wrongdoer should be inflicted upon himself.
It is completely wrong to assign this meaning to the term “retribution”. It might have had this
meaning in primitive societies, but modern writers on criminal law reject this meaning, and
favour the more enlightened meaning described above, namely the restoring of the legal
balance which has been disturbed by the commission of the crime.
(d) Degree of punishment must be in proportion to the degree of harm According to the
retributive theory the extent of the punishment must be proportionate to the extent of the harm
done or of the violation of the law. The less the harm, the less the punishment ought to be,
because the debt which the offender owes the legal order is then smaller. This is illustrated by
the fact that the punishment imposed for an attempt to commit a crime is, as a rule, less severe
than for the commission of the completed crime. Again, the driver of a motor vehicle who
negligently causes a person’s death will receive a heavier sentence than one who merely drives
negligently but, fortunately for him, does not seriously injure anyone or damage any property.
By insisting upon the proportionality between harm and punishment, retribution reveals its
basic link with the principle of equality, which is inherent in the principle of justice. The right
to equality is in fact enshrined in the South African Bill of Rights.12
________________________
8
9
10
11
12
Snyman 2001 THRHR 218 221–222; Moore 84 ff; Morris ch 2; Dressler 16–19; Murphy 82–115, 223–
245; Moore in Schoeman (ed) 179–217; Hampton 1992 University of California LR 1659 ff; Dressler
1990 Michigan LR 1448 ff; Fletcher 1994 Journal of Contemporary Legal Issues 101 ff; Arenella 1992
University of California LR 1511 ff; Bainbridge 1985 American Bar Association Journal (May) 61 ff;
Falls 1987 Law and Philosophy 25 ff; Sendor 1994 Journal of Contemporary Legal Issues 324 ff; Byrd
1989 Law and Philosophy 152; Taylor 1981 Law and Contemporary Problems 46 ff; Cotton 2001 American Criminal Law Review 1313. (The very title of this article says it all. It reads “Back with a Vengeance:
the Resilience of Retribution as an Articulated Purpose of Criminal Punishment”.)
See especially the articles mentioned in previous footnote by Falls 32–41; Hampton 1667–1671, and
Murphy 82–92.
Such as expiation or atonement, denunciation of the crime and the criminal, and the mollification of
society. See Snyman 2001 THRHR 218 222–225.
Genesis 9: 6; Exodus 21: 23–25.
S 9(1) of the Constitution. For a good example of the application of this principle, see Mngoma 2009 1
SACR 435 (EC).
12
SNYMAN’S CRIMINAL LAW
The idea of a proportional relationship between harm and punishment, inherent in the retributive theory, is of great importance in the imposition of punishment. If the retributive
theory were to be rejected and only the relative theories followed, it would mean that punishment that is out of all proportion to the seriousness of the crime committed, could be imposed.
If the emphasis were solely on prevention, the best thing to do would be to imprison for life
each thief who took even the smallest article. Such harsh punishment would probably also be
the best form of deterrence. The reformative theory, applied in isolation, would also have the
result that a person who had committed a relatively minor crime could be subjected to reformative treatment for a lengthy period in an effort to cure him of his errant ways.
In short, punishment presupposes the idea of retribution. The retributive theory is accordingly the only theory that relates punishment directly to the completed crime and to the idea of
justice.
(e) Expression of society’s condemnation of the crime According to the retributive theory
punishment expresses society’s condemnation, its emphatic denunciation, of the crime. For
this reason the retributive theory is sometimes called “the expressive theory of punishment”.
By committing a crime the criminal by implication sends out a message to the victim that he
holds him in contempt, that he is his superior and that he dominates him. Punishment in the
form of retribution serves to cancel this message of dominance, “brings down” the offender to
the same level as the victim, and expresses solidarity, not only with the victim, but with the
maintenance of justice in general.
(f ) Retribution respects freedom of will and explains necessity of culpability requirement
A very important difference between the retributive theory and the relative (utilitarian) theories is the following: the retributive theory operates within an indeterministic construction of
society; it therefore presupposes that man has a free will and that he may accordingly either be
praised or blamed for his actions. The relative or utilitarian theories, on the other hand, operate
within a deterministic construction, which, at least in its original, unadulterated form, presupposes that man does not have a freedom of choice but is the victim of outside forces such as
heredity, the environment or upbringing. He is the product of circumstances and is being
manipulated or at least capable of being manipulated by outside circumstances. The reformative theory, for example, presupposes that the transgressor is a “sick” person who, like other
sick people, could be changed by therapy into once again becoming a “normal” law-abiding
citizen.
The importance of this distinction is the following: Free people can be held responsible for
their choices, provided the choices were made voluntarily. They have in a certain sense merely
brought the punishment upon themselves. They can fairly be blamed for what they did and
their punishment is their just desert. They have earned their punishment. According to the
utilitarian model, on the other hand, the transgressor cannot be blamed for acting in the way he
did, because what he did was not the result of his own free choice, but of outside forces. He may
arouse our pity or compassion, but blame is out of place. After all, one may blame another for his
actions only if he could have avoided it, and according to the relative theories X could not have
avoided the wrongful acts. Since the general requirement for criminal liability known as culpability (mens rea or fault) is based on X’s blameworthiness, it is the retributive theory, and not
the utilitarian theories, which offers the best explanation of the culpability requirement.
If one considers the deterrent theory (a relative theory) one finds that people can be deterred
from crime even by punishing somebody who transgressed the norms of criminal law while
lacking culpability. One can in fact deter people from crime even by punishing not X himself,
but his family or friends (something which is not unknown in authoritarian regimes).
(g) Retribution respects human dignity By applying the retributive theory, the legal order
respects X’s human dignity, because X is treated not as a depersonalised cog in a machine, but
INTRODUCTION
13
as a free, responsible human being. His punishment is founded upon his own free choice.13 As
Kant emphasised, man’s dignity requires him to be treated not as a means to an end, but as an
end in itself. His worth is not based upon his utility to others, as the utilitarians would have
him be, but upon an inherent, inalienable dignity. On the basis of retribution only, can X, after
serving his sentence, look his fellow citizens in the eye in the knowledge that he has “paid his
account” and is therefore their equal again. The utilitarian theories treat a person as an object
to be manipulated or conditioned, as one would treat an animal.
To abandon retribution and to justify punishment on utilitarian grounds only is to treat the
offender as somebody who is not the equal of other members of society. Whereas the latter are
all subject to the law and are therefore obliged to pay the debts they may owe society according to their deserts, the offender is treated as an exception, as somebody “different”. Society,
in effect, tells him: “You are not like the rest of us. We do not treat you according to your
deserts or (which is the same) your merit; we do not measure your worth by the same yardstick by which we measure that of everybody else.” This in turn is tantamount to giving the
offender a sense of guilt for the rest of his life, for whereas everybody else in society would be
proud to pay their debt and thereafter to look their fellow citizen in the eye as an equal, the
offender is treated as an exception to the rules applicable to everybody else; he is denied the
opportunity of functioning as an equal of others in a paradigm in which everybody is treated
according to his merits or desert.
5 The preventive theory We now turn our attention to the relative theories of punishment.
We shall first discuss the preventive theory, according to which the purpose of punishment is
the prevention of crime. This theory can overlap with both the deterrent and the reformative
theories, since both deterrence and reformation may be seen merely as methods of preventing
the commission of crimes. On the other hand, certain forms of punishment are in line with the
preventive theory without necessarily also serving the aims of deterrence and reformation.
Examples are capital punishment, life imprisonment and the forfeiture of, for example, a
driver’s licence. If a legal system were to go so far as to castrate certain sexual offenders, this
too would be an application of the preventive theory.
Some sources recognise a theory of punishment known as “incapacitation”.14 Closer scrutiny of this theory reveals that it is merely a variation of the preventive theory. According to the
theory of incapacitation X is punished in order to prevent him being capable of committing
crime again. This theory is closely linked to the view that the purpose of punishment is the
protection of society.
The success of the preventive theory depends largely upon the ability of a court to establish
beforehand which accused are so dangerous that they should permanently, or at least for a long
period, be removed from society. However, it is often difficult for a court to determine beforehand with certainty whether an accused falls into this category. This is one of the points of
criticism against the efficacy of this theory. A convicted person’s record could, however, be
used as guideline: should it show previous convictions, indicating that he makes a habit of
committing crimes, the court may take this into account and sentence him to a long term of imprisonment in order to prevent him from committing crimes again.
________________________
13
14
Morris 42: “[I]n the therapy world nothing is earned and what we receive comes to us through compassion, or through a desire to control us. Resentment is out of place. We can take credit for nothing but must
always regard ourselves . . . as fortunate recipients of benefits or unfortunate carriers of disease who must
be controlled. We know that within our own world human beings who have been so regarded and who
come to accept this view of themselves come to look upon themselves as worthless.” See also Snyman
2001 THRHR 218 230–231.
Eg, La Fave 27; Allen 1.3.1.3; Burchell and Milton 73–74.
14
SNYMAN’S CRIMINAL LAW
6 The theory of individual deterrence A distinction must be drawn between individual
and general deterrence. Individual deterrence means that the offender as an individual is
deterred from the commission of further crimes, and general deterrence means that the whole
community is deterred from committing crimes. The idea at the root of individual deterrence is
to teach the individual person convicted of a crime a lesson which will deter him from committing crimes in the future. In South Africa the premise of this theory is undermined by the
shockingly high percentage of recidivism (offenders who continue to commit crime after
being released from prison) – this lies in the region of 90%15 and suggests that this theory is
not very effective, in any event not in South Africa.
7 The theory of general deterrence According to this theory the emphasis is not, as in the
previous theory, on the individual offender, who, by having instilled fear in him, will supposedly be deterred from again committing crime. The emphasis here is on the effect of punishment on society in general: the purpose of punishment is to deter society as a whole from
committing crime. The belief is that the imposition of punishment sends out a message to
society that crime will be punished and that, as a result of this message, members of society
will fear that if they transgress the law they will be punished, and that this fear will result in
their refraining from engaging in criminal conduct.
There is a common misconception that the effectiveness of general deterrence depends only
upon the severity of the punishment, and that this theory is accordingly effective only if a
relatively severe punishment is prescribed and imposed. Although the degree of punishment is
not irrelevant in judging the effectiveness of this theory, the success of the theory in fact does
not depend on the severity of the sentence, but on how probable it is that an offender will be
caught, convicted and serve out his sentence. The theory is accordingly successful only if
there is a reasonable certainty that an offender will be traced by the police, that the prosecution
of the crime in court will be effective and result in a conviction, and that the offender will
serve his sentence and not be freed on parole too early, or escape from prison.
If the police fail to trace offenders (as a result of, for example, understaffing, bad training or
corruption), the state prosecutor fails to prove an accused’s guilt in court (as a result of, for
example, shortages of personnel, bad training, or lack of professional experience), or the
prison authorities cannot ensure that a convicted offender serves his sentence and does not
escape before the expiry of his sentence period, the deterrent theory cannot operate effectively.
Prospective offenders will then think it is worth taking a chance by committing the crime,
since the chances of their being brought to justice are relatively slim.
This is precisely the danger facing criminal justice in South Africa. It is well known that a
variety of factors, such as an understaffed police force, some police officers and prosecutors
lacking the required skills, possible corruption and bad administration (factors which may all
be traced back to a lack of funds) considerably weaken the probability of a real offender being
brought to justice and punished. In fact, in the light of statistics showing how few offenders
are ultimately apprehended, prosecuted and sentenced, it is difficult not to conclude that in
South Africa it pays to commit crime.16 For this reason the theory of general deterrence can only
be of limited value in a country such as South Africa.
________________________
15
16
While there are no official statistics on the rate of recidivism in South Africa, this is estimated to be
between 55% and 97% – Schoeman 2010 Acta Criminologica 80 81. See also Prinsloo 1997 SACJ 46 and
the statistics mentioned in this article.
Kotze 2003 SACJ 38 39 alleges that “the perpetrator of some serious violent crimes have a less than 2%
chance of being caught and punished”. Leggett 2003 SA Crime Quarterly 11 indicates that only six out of
every 100 violent crimes recorded by the South African Police Service result in a conviction, although he
adds that, apart from murder, these statistics are not out of line with more developed countries. These statistics may be further disaggregated as follows: according to the SAIRR Survey 2003/2004 395, the SA
[continued]
INTRODUCTION
15
Quite apart from the misgivings regarding the effectiveness of this theory, attention must be
drawn to certain further points of criticism against this theory.
Firstly, it must be remembered that this theory, in typical utilitarian fashion, is based upon
the premise that man prefers the painless to the painful, and that he is a rational being who will
always weigh up the advantages and disadvantages of a prospective action before he decides
to act. However, this is by no means always so, especially where a person commits a murder
or assaults someone in the heat of the moment.
A second point of criticism of the theory is that its basic premise, namely that the average
person is deterred from committing a crime by the punishment imposed upon others, can
presumably never be proved. To be able to prove it one would have to know how many people
would commit the crime if there were no criminal sanction. This cannot be ascertained empirically. The deterrent effect of punishment on the community as a whole rests on faith rather
than on real empirical evidence.
A third point of criticism of the theory is that the requirement of culpability, which is a cornerstone of criminal liability, cannot readily be explained by merely relying on this theory: it
is possible to deter people from committing crime even by punishing those who transgress the
rules of criminal law without any culpability. If, for example, the law were to punish an insane
person for having committed an unlawful act, such punishment could still operate as a deterrent to others.
The fourth and perhaps most important criticism of this theory is the following: If one applies this theory, it becomes permissible to impose a punishment on an offender which is not
proportional to the harm he inflicted when he committed the crime, but which is higher than a
proportional sentence. This is, after all, what happens if a court imposes a sentence which it
wishes to operate as a deterrent to others. In this way one individual is sacrificed for the sake
of the community, and that individual is degraded to being a mere instrument used to achieve
a further goal. Such a technique is open to criticism as being immoral, because, in accordance
with the deterministic origin of this theory, the accused is not (as in the case of retribution)
regarded as a free, responsible agent who gets only what he deserves, but is used as a means to
an end, namely the presumed improvement of society.17
8 The reformative theory This theory is of fairly recent origin. Its premise is that the
purpose of punishment is to reform the offender as a person, so that he may become a normal
law-abiding member of the community once again. Here the emphasis is not on the crime
itself, the harm caused or the deterrent effect which punishment may have, but on the person
and personality of the offender. According to this theory an offender commits a crime because
of some personality defect, or because of psychological factors stemming from his background, such as an unhappy or broken parental home, a disadvantaged environment or bad
influences from friends. The recent growth of the sociological and psychological sciences has
largely contributed to the creation of this theory.
The following are some points of criticism against this theory. First, the theory does not
provide for the punishment to be proportionate to the harm inflicted or to the degree of violation of the law. The application of the theory might entail the imposition of long periods of
imprisonment (to afford enough time for rehabilitation), even for crimes of a minor nature.
Secondly, it is difficult to ascertain beforehand how long it will take to reform an offender.
Thirdly, the theory is effective only if the offenders are relatively young; when it comes to
older offenders it is very difficult, if not impossible, to break old habits and change set ideas.
________________________
17
Law Commission has found that only in 1% of murder cases, 5% of rape cases and 3% of cases of robbery
with aggravating circumstances have there been convictions. About 75% of all serious crimes have never
even ended up in the courts.
Cf the apt remarks in this regard in Dodo 2001 1 SACR 594 (CC) par 38.
16
SNYMAN’S CRIMINAL LAW
Fourthly, experience has taught that rehabilitation of the offender is more often than not an
ideal rather than a reality. The high percentage of recidivism is proof of this. Certain people
simply cannot be rehabilitated. However, the ideal of reformation may be indirectly advanced
if a court imposes a sentence which is suspended on condition that X subject himself to a
certain rehabilitation programme. The reformation then takes place outside prison.
A fifth basic point of criticism is that, strictly speaking, it is not necessary to wait for a person to commit a crime before one starts to reform him. A completely consistent application of
this theory would mean that once a person clearly manifests a morbid propensity towards
certain criminal conduct (as, for example, the kleptomaniac or the psychopath who cannot
control his sexual desires), one ought not to wait for him to commit a crime, but should have
him committed to a rehabilitation institution immediately so that an attempt can be made to
cure him of his problem. There would then be no relationship between what happens to such a
“sick person” and the commission of a crime. The person requiring treatment would then no
longer be a criminal, and the “treatment” he received would then be viewed in the same light
as the hospitalisation of ill people. Even if one were to describe the treatment as “punishment”, it would not entail any blameworthiness on the part of the person “treated”. In fact,
strictly speaking it is not even correct to describe the rehabilitative treatment which the offender receives as “punishment”, because in this theory the emphasis is not on any unpleasantness which the offender should receive, but rather on measures aimed at making him a
better person.
In the light of the above criticism of the theory it is not surprising that the theory has lately
lost its attractiveness in countries such as the USA and England. However, South African
courts still believe in rehabilitation as a purpose of punishment in appropriate cases. Owing to
the overpopulation of the prisons as well as the lack of sufficient funds to implement the
expensive treatment programmes, it is doubtful whether this theory of punishment can be
applied with success in South Africa. In the light of the alarming increase in crime in recent
times in South Africa as well as the justified insistence of the community (all population
groups) that punishment reflect the abhorrence of crime, this theory of punishment should not
be granted too much weight.
9 The combination theory The courts do not reject any one of the theories set out above
outright but, on the other hand, they do not accept any single theory as being the only correct one
to the exclusion of all the others. Like other courts in the Western world, our courts apply a
combination of all the above-mentioned theories, and for this reason one may speak of a
combination theory.
The idea of retribution (not in the sense of vengeance, but in the sense of the restoring of a
disturbed legal balance) ought, in principle, to form the backbone of our approach to punishment. There is no such thing as punishment devoid of any element of retribution. The retributive theory is indispensable, for it is the only one which decrees that there ought to be a
proportionate relationship between the punishment meted out and the moral blameworthiness
of the offender, as well as between the degree of punishment, on the one hand, and the extent
of the harm done or the degree in which the law was violated, on the other hand.
The nature of the combination theory applied in a particular case is determined by the
weight afforded to each of the particular theories contained in the combination. Our courts
emphasise that there are three main considerations to be taken into account when sentence is
imposed, namely the crime, the criminal and the interests of society.18 By “crime” is meant
especially the consideration that the degree of harm or the seriousness of the violation must be
________________________
18
Zinn 1969 2 SA 537 (A) 540; Khumalo 1984 3 SA 327 (A) 330; B 1985 2 SA 120 (A) 124; Malgas 2001 1
SACR 469 (SCA) 478d; De Kock 1997 2 SACR 171 (T) 183; Cassiem 2001 1 SACR 489 (SCA) 494. See
also generally the discussion in Terblanche 163–170.
INTRODUCTION
17
taken into account (retributive theory); by “criminal” is meant especially that the personal
circumstances of the offender, for example, the personal reasons which drove him to crime as
well as his prospects of one day becoming a law-abiding member of society again must be taken
into account (reformative theory); by “the interests of society” is meant either that society
must be protected from a dangerous criminal (preventive theory) or that the community must
be deterred from crime (theory of general deterrence) or that the righteous indignation of
society at the contravention of the law must find some expression (retributive theory).
In a judgment which ought to be welcomed, the Supreme Court of Appeal in 2011 held in
Matyityi19 that a court when imposing sentence should also take into account the interests of
the victim. After this decision it is perhaps more correct to say that there are, according to the
courts, four key considerations that must be taken into account when imposing sentence,
namely, the crime, the criminal, the interests of the community and the interests of the victim.
There ought to be a healthy balance between these three considerations. A court should not
emphasise any one of them at the expense of the others. Nevertheless, a close scrutiny of the
case law reveals that the courts tend to regard general deterrence as the most important purpose of punishment, and that retribution no longer plays an important role. This approach to
punishment can be criticised, as will be shown below.20
It is impossible to combine these three considerations in a particular way with specific
weight allotted to each beforehand, and then to use this as a rigid formula in all cases. Each
case is unique and each accused differs from all others. Our courts quite rightly emphasise the
importance of the individualisation of sentences.21 However, this does not mean that the
principle of ensuring, in so far as this is possible, the uniformity of sentences where the
relevant circumstances in cases resemble each other, should therefore be thrown overboard.22
A discussion of all the considerations (such as age, ability to pay a fine, previous convictions)
which ought to be taken into account when punishing different types of crime and different
types of offenders falls outside the scope of this book.
10 Evaluation of existing rules relating to punishment The weight attributed in a specific
country and at a specific time to each of the theories of punishment depends upon the particular circumstances in that country at that time. Unlike in most other countries, crime levels have
soared to alarming proportions in South Africa in recent times.
It is submitted that, in the light of the particular circumstances in South Africa, retribution
(just desert) ought to have a higher priority than was until recently the case. Considerations
pertaining to the individual interests and circumstances of the accused ought to receive less
weight than in previous times. It is time that the combating of crime and the protection of
society receive the highest priority. More emphasis ought to be placed on retribution in order
to express society’s justified condemnation of crime.
The legislature has already taken a significant step towards the implementation of sentences
to protect society when it enacted section 51 of the Criminal Law Amendment Act 105 of
1997. This section provides for certain minimum periods of imprisonment, including even
mandatory life imprisonment in certain cases, unless there are substantial and compelling
circumstances which justify the imposition of a lesser sentence. The introduction of mandatory
minimum sentences by the legislature should be welcomed. Although it fetters judicial discretion relating to the measure of punishment, it is a necessary step in the light of the crisis in
which the administration of criminal justice finds itself in this country.
________________________
19 2011 1 SACR 40 (SCA) pars 16–17.
20 Infra par 10.
21 Zinn supra; B supra 125F–G; Matoma 1981 3 SA 838 (A) 843A.
22 Reddy 1975 3 SA 757 (A) 760; Goldman 1990 1 SACR 1 (A) 3d–e; Blank 1995 1 SACR 62 (A) 70.
18
SNYMAN’S CRIMINAL LAW
Although considerations relating to the rehabilitation of the individual offender should not
be discarded completely, the reformative theory must necessarily have a lower priority in this
country. Reformation of offenders is costly. South Africa does not have the financial means to
realise the reformative ideals.
D ASPECTS OF THE CRIMINAL JUSTICE SYSTEM
1 Customary criminal law As is the case across Africa, the encounter with colonial powers
has had a defining and constricting effect on customary law in South Africa. Inevitably colonialism has imprinted its values on custom, and these have proved difficult to disentangle from
customary law norms.23 While practical concerns forced the colonial powers in Africa to recognise indigenous laws, this was always on the basis that they were suitably “civilised”, which
ensured that the courts could filter out provisions and practices that were regarded as being incompatible with natural justice, morality or public policy.24 Hence, as Bennett points out, “the
fundamental rights and freedoms of Europe were to be the basis of the colonial legal order”.25
Customary law has lived under the colonial yoke, and the European value system ever since.
There are significant difficulties with concretising and accessing customary law sources.
Unlike the written laws that constitute legislation, customary law is conceptualised in oral
terms. As Monture-Okanee and Turpel comment about the Aboriginal laws of Canada: “Laws
were not written because law needs to be accessible to everyone. When an oral system is
effective, the law is carried with each individual wherever he or she travels.”26 The difficulty
with unwritten law in terms of the formal court structure that derives from the colonial past is
manifest. As a result, one of the earliest official colonial projects involved gathering information on customary law, and drafting it into code form, a practice that even continued into
the post-colonial period.27 While the intention behind this process – the accessibility of written
laws to allow for efficient administration – was laudable, it failed to recognise that “the
reduction of oral law to writing effects a change not only to form but also to content”.28 One of
the dangers of writing down an oral tradition is generalisation – where highly localised customs may be generalised and applied in a range of new situations.29 This fails to acknowledge
significant differences between tribes, particularly, in the local context, tribes belonging to the
Nguni group and those belonging to the Sotho group.30 Other inherent difficulties with ascertaining the customary law rules are those of lack of information about certain tribal groupings;31 the problem of acculturation and development, which reflects that since there is no
written record of rules from the tribes themselves, it is not known to what extent European
influence has impacted on customary legal rules;32 and the problem of the lack of unity between “official” customary law, deriving from the writings of anthropologists and lawyers,
and the “non-official” customary law, the law actually lived out by people, and applied in
various traditional and informal tribunals.33
________________________
23
24
25
26
27
28
29
30
31
32
33
Bennett in Reimann and Zimmermann 641 645.
Ibid 645–646.
Ibid 646.
Monture-Okanee and Turpel 1992 University of British Columbia Law Review 239 245.
Bennett in Reimann and Zimmermann 646.
Ibid 647. On the nature of oral law, see ibid 647–648.
Labuschagne 1990 TRW 36; Bennett in Reimann and Zimmermann 648.
Bekker 123.
Labuschagne 1990 TRW 36; Labuschagne and Van den Heever 1995 CILSA 422.
Labuschagne 1994 Obiter 85; Labuschagne and Van den Heever 1991 CILSA 352.
Bekker and Maithufi 1992 TRW 47.
INTRODUCTION
19
Sourcing customary criminal law requires an awareness of all these difficulties, along with
other unique challenges,34 such as the fact that a sharp distinction between criminal law and
the law of delict does not exist in customary law.35 Moreover, there is a dichotomy in the point
of departure of customary criminal law, which is founded on duty, and the national criminal
justice system, which is based on rights.36 The attribution of blame in customary law can also
not always be based on observable facts, given the understanding that there are also supernatural causes of harm.37 There are further distinct challenges in respect of customary criminal
law. The first relates to the state’s monopoly on force, which does not sit well with the existence of a separate criminal justice system which imposes punishment for offenders.38 Secondly,
the formal system of substantive crime is based on the constitutional principle of legality,39
which requires clearly defined crimes. The customary criminal law is in its nature not concerned with narrowly constrained definitions.40 Thirdly, the criminal justice system has certain
procedural safeguards, such as the presumption of innocence and legal representation, which
do not pertain to customary criminal law.41 All these difficulties militate against the recognition of customary crimes.42
It is universally accepted that all persons are subject to the general criminal law in that
country, given the linkage between criminal law (like other branches of public law) with state
sovereignty.43 Is there potentially a wider role for the precepts of customary criminal law?
Recent case law has provided a few indications in this regard. In Dalindyebo the appellant, the
paramount chief of the abaThembu tribe, was appealing his conviction on a number of charges, including arson, attempted murder and culpable homicide, flowing from a series of “disciplinary measures” he had meted out on his subjects.44 The Supreme Court of Appeal
responded to the appellant’s submission that it should be understood that he was acting in the
best interest of his people, and that by resorting to his brand of justice he was merely seeking
to protect them from outside influences and upholding customary law, by labelling it “astonishing”. The court held that customary law demanded that a king ensure the maintenance of
________________________
34
35
36
37
38
39
40
41
42
43
44
For the Canadian perspective on the obstacles involved in integrating indigenous Aboriginal criminal law
with the Canadian criminal justice system, described (244) as “completely alien to aboriginal peoples”,
see Monture-Okanee and Turpel 1992 University of British Columbia Law Review 239.
Labuschagne and Van den Heever 1991 Obiter 80, although the authors argue that such a distinction
nevertheless needs to be drawn. As Bennett in Fenrich, Galizzi and Higgins 383 points out, the lack of a
clear distinction between crime and delict makes it harder to insist on the procedural guarantees inherent
in criminal law, as required under the Constitution. Moreover, customary law may take a different view of
an offence, for example labelling what would be rape in terms of the general criminal law as a civil matter
of adultery or fornication. So what law must be used to classify between customary law and the general
criminal law?
Bennett in Reimann and Zimmermann 660.
Ibid.
See Bennett in Fenrich, Galizzi and Higgins 370–373.
Infra I F.
See Bennett in Fenrich, Galizzi and Higgins 373–376, who points out that customary law should preferably be understood as the law currently being lived out by the community (rather than the “official” law
contained in codes and textbooks), but that the consequence of this is that the rules may be “infinitely variable”, changing through social practice and by traditional law-making.
Ibid 376–380.
Nevertheless, since the status of the customary law is determined by s 211(3) of the Constitution, 1996,
which provides that the courts “must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law”, not only traditional courts, but
also magistrates’ courts and the High Court are now allowed to enforce customary crimes. See Bennett in
Fenrich, Galizzi and Higgins 365366.
SA Law Commission Project 90: Harmonisation of the common law and the indigenous law – report on
conflicts of law (1999) par 3.19.
Dalindyebo 2016 1 SACR 329 (SCA).
20
SNYMAN’S CRIMINAL LAW
law and order, protect the life and security of his people, and act compassionately with due
regard to the dignity of his subjects, and that further, and more importantly, “our constitutional
order will not countenance the kind of conduct the appellant was guilty of”.45 It is clear from
this judgment that customary authority is subservient to constitutional authority, despite the
clear recognition of customary law in the Constitution.
In this regard, the case of Gongqose46 is noteworthy. Regarding the status of customary law,
the court pointed out that the Constitution recognises customary law as an independent and
original source of law.47 Hence, customary law is protected by and subject to the Constitution
in its own right.48 Thus, the adjustment and development of customary law may be necessary
to align its provisions with the Constitution, or to promote the spirit, purport and objects of the
Bill of Rights.49 Moreover, it was held, as an independent source of norms within the legal
system, customary law may give rise to rights.50 In this regard, it was decided that the appellants had proved that at the time of the commission of the offence, they were exercising a
customary right to fish. Therefore, the appellants’ conduct was not unlawful.51 It is clear then
that customary law can, in the appropriate circumstances, form the basis for a defence in the
national criminal law.
However, where the defence is based on a particular cultural tradition, the criminal law is
not as amenable to customary legal precepts. As was stated by the SA Law Commission,
“[w]hen laws involve not individual or narrow community interests, but wider interests of the
society as a whole, the right to equal treatment will outweigh any freedom to pursue a culture
of choice”.52 This approach was illustrated in the case of Jezile,53 which involved convictions
on a series of charges, specifically, one count of child trafficking,54 three counts of rape, one
count of assault with intent to cause grievous bodily harm, and one count of common assault.
The appellant had travelled from the Western Cape to his home in the rural Eastern Cape in
order to conclude a customary marriage. Despite not having even spoken to the complainant,
he identified her as a suitable wife, and set traditional lobola negotiations underway, upon the
culmination of which the complainant, who was 14 years old, became his customary wife,
having been so instructed by her family. The complainant was unhappy, and left her new
home a few days into the marriage, hiding away until found and returned to the appellant by
her own male family members, who agreed that she should return to the Western Cape with
the appellant. After their arrival, sexual intercourse took place between them on various
occasions, all of which were non-consensual on the complainant’s part. After a series of
further arguments, and an injury that was inflicted on her by the appellant, the complainant ran
away and reported the matter to the police.
After an initial conviction in the regional court, the matter came before the Western Cape
High Court on appeal. The crux of the matter was whether and to what extent the appellant
________________________
45
46
47
48
49
50
51
52
53
54
Ibid par 77.
Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 2 SACR 367 (SCA). The case related to
an appeal against conviction for contravening s 43(2)(a) of the Marine Living Resources Act 18 of 1998,
by attempting to fish in a marine protected area without permission.
In terms of s 211 of the Constitution, 1996, at par 22.
At par 23.
As required by s 39(2) of the Constitution, 1996. It was further pointed out by the court (par 24) that the
recognition of customary law as an independent source of law is further entrenched by ss 30, 31 and 39 of
the Constitution.
At par 25.
At par 64.
SA Law Commission Project 90: Harmonisation of the common law and the indigenous law – report on
conflicts of law (1999) par 3.19.
2015 2 SACR 452 (WCC).
Contrary to ss 284(1) and 305(1)(s) of the Children’s Act 38 of 2005.
INTRODUCTION
21
could rely on customary law as a defence, and in particular the practice of ukuthwala. It was
submitted that “consent” in the context of ukuthwala was “a concept that must be determined
in accordance with the rightful place which customary law has in our constitutional dispensation, because it is an integral part of ukuthwala that the ‘bride’ may not only be coerced, but
will invariably pretend to object (in various ways) since it is required, or at least expected, of
her to do so”.55 The court, engaging expert advice, examined the ukuthwala practice, noting
that it was the subject of much public attention and debate and that “its current practice is
regarded as an abuse of traditional custom and a cloak for the commission of violent acts of
assault, abduction and rape of not only women, but children as young as eleven years old by
older men”.56 The court set out the relevant national and international provisions which are
applicable, and began by referring to section 211(3) of the Constitution, which provides that
the courts “must apply customary law when that law is applicable, subject to the Constitution
and any legislation that specifically deals with customary law”.57
Noting that there could be no tolerance for child trafficking or indeed any form of child
abuse or exploitation for sexual purposes,58 the court proceeded to examine the appellant’s
claims that his conduct could be justified as consistent with the practice of ukuthwala. The
experts on customary law were in agreement that the young age of the complainant, her lack
of consent and the fact that lobola was paid before the ukuthwala occurred, all militated
against accepting what had occurred as true ukuthwala.59 Instead, it could be regarded as a
perversion of the ukuthwala custom and “aberrant”.60 The court proceeded to note with grave
concern that such aberrant practice was in fact widespread, and was symptomatic of the
poverty in rural areas where the payment of “lobola” in such cases helped to assuage the
grinding poverty and led to the practices being condoned.61
It was held that given that ukuthwala is no more than an “irregular” gateway to a marriage,
the substantive requirements for a marriage62 still apply and the primary requirement of
consent must be fulfilled.63 In the light of the “aberrant” form of ukuthwala practised in this
instance, the court held that there could be no justification for the conduct based on customary
law.64 In any event, the court held that the offences for which the appellant was charged took
place after a “traditional” ukuthwala would have occurred; this is because the trafficking and
sexual assaults occurred after the customary marriage.65 Consequently there could be no
reliance on ukuthwala (in the traditional sense) as justification, and the convictions on the
trafficking and rape charges were upheld.
It bears noting that the ukuthwala custom has been pleaded without success as a defence to
criminal charges in previous decisions.66
In the discussion of the substantive rules of criminal law which follows below reference will
be made to customary law equivalents wherever appropriate. While the caveats and concerns
listed above are all pertinent,67 this approach will seek to both inform regarding the presence
________________________
55 Jezile at par 52.
56 At par 56.
57 At par 58.
58 At par 69.
59 At par 75.
60 At par 76, in the words of Inkosi Mahlangu.
61 At par 77, 78.
62 As per the Recognition of Customary Marriages Act 120 of 1998.
63 Jezile at pars 82–84.
64 At par 95.
65 At par 90.
66 Swaartbooi 1916 EDL 170; Mane 1948 1 SA 196 (E); Sita 1954 4 SA 20 (E) 22.
67 A comparative project between customary criminal law and general (national) criminal law encounters a
further difficulty when one considers the nature of the legal systems compared. It brooks little argument
[continued]
22
SNYMAN’S CRIMINAL LAW
of such rules, and to demonstrate that the national criminal law rules and customary law rules
are substantially similar. Though the common-law rules of our national criminal law system,
as developed through the cases, unquestionably have European roots, it is useful to be able to
conclude that they are not simply some alien colonial contrivance, but that they resonate with
the analogous customary law rules.68
2 Criminal law and apartheid69 In the course of the twentieth century, successive South
African governments, pursuing policies of racial segregation, enforced laws which imposed
social and economic discrimination between the white and other races. Under these laws it
became a crime for persons who were not white to enter urban areas;70 to enter or use certain
public facilities (public parks, beaches, theatres);71 to occupy land in certain “group” areas;72
to be employed in certain jobs;73 to possess intoxicating liquor;74 to marry or have a sexual
relationship with a white person75 (in this case the white person involved also committed a
crime).
Resistance by the unenfranchised black people to discrimination, particularly in its guise as
the official policy of “apartheid” led to the enactment of various “security” measures which
conferred upon the police and the executive government extensive powers of arrest without
warrant, detention without trial, indefinite incommunicado detention, house arrest and “banning”.76
New “security” crimes of “sabotage”, “terrorism” and “subversion” were created.77 These
were distinguished by excessively wide proscriptions and intractably vague language.78 Their
effect was to bring within the penal sanction a wide range of activities that would not otherwise be considered to be deserving of censure, never mind punishment.
________________________
68
69
70
71
72
73
74
75
76
77
78
that present-day Romanists are able to set out the written Roman law more systematically and analytically
than the Romans themselves. The reason for this is that modern thinking has been enriched and refined
over a period of many centuries. In the same way, it could be argued that customary law is still too casuistic in nature to draw out general principles, in particular (as Labuschagne contends in 1980 De Jure 423).
Unwritten customary law further does not contain complete definitions of offences, and although the elements of these offences, along with a fuller definition, can be established upon more detailed investigation, this state of affairs renders the inquiry more difficult.
Certain customary crimes have no equivalent in general criminal law, including crimes relating to supernatural harm such as practicing black magic (Myburgh 99–101; Prinsloo 223–230; Botha 53–56) and violating taboo (Myburgh 94–98; Prinsloo 230–232; Botha 56–58). Certain customary crimes, such as
abortion, no longer exist in the traditional form in the general criminal law (on this customary crime see
Myburgh 85–86; Prinsloo 213–214; Botha 35–36. Certain customary crimes exist which were once common-law crimes but have now been abolished, such as adultery (this crime still exists in certain tribes according to Myburgh 107; Labuschagne and Van den Heever 1997 CILSA 76 95). Certain customary
crimes are unique to customary law in the form of independent offences, such as contempt of the ruler
(Myburgh 65; Prinsloo 179–186; Botha 23–25); violating an administrative determination (Myburgh 73;
Prinsloo 189–190; Botha 27–29); and disobeying orders (Prinsloo 186–189; Botha 25–26; Myburgh 75–
77).
See, generally, Chanock 1995 Law and Social Inquiry 911 and Chanock 114 ff.
The offences were created by the Natives (Urban Areas) Act 25 of 1945.
The offences were created by the Reservation of Separate Amenities Act 49 of 1953, which was repealed
in 1990.
The offences were created by the Group Areas Acts 41 of 1950 and 36 of 1966. These Acts were repealed
in 1991.
See Dugard 86–87.
In terms of the Liquor Act 1928 and its successors.
See Hoctor, Milton & Cowling E3-2 for an account of this legislation, since repealed.
For a survey of these provisions, see Mathews Freedom, State Security and the Rule of Law.
For these crimes see Mathews supra.
For these crimes see Mathews supra.
INTRODUCTION
23
By 1986 civil disorder had become endemic in some black townships and the government
assumed greater powers by the declaration of a state of emergency. The police, aided in
instances by militia, acted almost exclusively in terms of the extraordinary powers conferred
under emergency regulations.79 In February 1990 a new era of political reform was introduced
which resulted not only in the termination of the state of emergency, but also the removal of
many of the racial crimes from the statute book.80 While much of the more notorious legislation
81
which underpinned the apartheid state has been repealed, other apartheid-era statutes and pro82
visions remain.
3 Criminal law and the Constitution Since the dawn of constitutional supremacy in South
Africa, the Bill of Rights has had a significant effect on criminal jurisprudence.83 In so far as
the substantive criminal law is concerned, the common-law crime of sodomy, the provisions
of section 20A of the Sexual Offences Act of 1957,84 the prohibition of the possession of
indecent or obscene photographic matter,85 the prohibition of public nudity on licensed premises,86 the prohibition on the use of deadly force in arrest,87 the prohibition on the possession
or cultivation of dagga for personal consumption by adults in private,88 the imposition of
criminal liability on children under the age of 16 years in relation to sections 15 and 16 of the
________________________
79
80
81
82
83
84
85
86
87
88
In terms of the Public Safety Act 1953. See 1985 Annual Survey of South African Law 543 ff; 1986
Annual Survey of South African Law 546 ff.
Burchell and Milton Principles of Criminal Law (1 ed) 186.
Such as the Internal Security Act 74 of 1982.
See, eg, the Intimidation Act 72 of 1982, of which s 1(1)(b) and s 1(2) were found to be unconstitutional
in Moyo v Minister of Police 2020 1 SACR 373 (CC), but the remaining provisions remain extant. Another contentious piece of legislation is the Riotous Assemblies Act 17 of 1956, which has been subject to
constitutional challenge – see Economic Freedom Fighters v Minister of Justice and Correctional Services
[2020] ZACC 25.
In respect of sentencing, capital punishment (in Makwanyane 1995 2 SACR 1 (CC)) and corporal punishment of offenders (in Williams 1995 2 SACR 251 (CC)) have been struck down as unconstitutional
forms of punishment, and it has been held that the inclusion of offenders aged 16 and 17 in the minimum
sentencing legislation unjustifiably infringed the rights of a child in terms of s 28 of the Constitution (in
Centre for Child Law v Minister for Justice and Constitutional Development 2009 2 SACR 477 (CC)).
Furthermore, in Minister of Justice and Constitutional Development v Masingili 2014 1 SACR 437 (CC) it
was held that the provision relating to aggravating circumstances relating to robbery in s 1(1)(b) of the
Criminal Procedure Act did not create an unconstitutional strict liability crime. In respect of procedural
criminal law, the rights of arrested, detained and accused persons are protected in terms of s 35 of the
Constitution. In this regard, a number of statutory provisions which included a reverse onus have been
struck down as unjustifiable breaches of the right to be presumed innocent until proven guilty. See, eg, the
decision of the Constitutional Court in Manamela 2000 1 SACR 414 (CC), where the court replaced the
unconstitutional reverse onus in s 37 of the General Law Amendment Act 62 of 1955 with an evidential
burden. See infra par XVIII F. For further examples of unjustifiable infringements of the presumption of
innocence declared invalid by the courts, see Burchell 19–22. The right to remain silent has been explicated by the Constitutional Court in Thebus 2003 2 SACR 319 (CC). S 35(5) of the Constitution, 1996 further provides for the exclusion of unconstitutionally obtained evidence.
The Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 2
SACR 556 (CC) held the crime of sodomy and the statutory provisions of s 20A of the Sexual Offences
Act 23 of 1957 to be unconstitutional and invalid, as they unjustifiably infringed the rights to equality,
privacy and dignity.
Indecent or Obscene Photographic Matter Act 37 of 1967, s 2(1), in Case v Minister of Safety and
Security; Curtis v Minister of Safety and Security 1996 3 SACR 587 (CC), where the court held that the
infringement of the right to privacy was neither reasonable nor justifiable (in terms of the limitations
clause contained in s 33(1) of the Interim Constitution, Act 200 of 1993).
Liquor Act 27 of 1989, s 160(d), in Phillips v DPP, WLD 2003 1 SACR 425 (CC).
The original form of s 49(2) of the Criminal Procedure Act 51 of 1977 was declared unconstitutional in Ex
parte Minister of Safety and Security: In re S v Walters 2002 2 SACR 105 (CC). See infra IV G.
In terms of ss 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, in terms of Minister of
Justice and Constitutional Development v Prince 2019 1 SACR 14 (CC). See infra XIII C.
24
SNYMAN’S CRIMINAL LAW
Criminal Law (Sexual Offences and Related Matters) Amendment Act,89 the criminalisation of
the failure to give prior notice of a gathering,90 and the offence of incitement91 have been
struck down as unconstitutional.
On the other hand, the constitutionality of the prohibition on making, distributing and possessing child pornography has been affirmed;92 along with the prohibition on corporal punishment in schools;93 as has the crime of prostitution;94 the crime of bestiality;95 the common
purpose doctrine;96 the crime of contempt of court ex facie curiae in the form of scandalising
the court;97 the inability to give account of possession of goods suspected stolen;98 criminal
defamation;99 fraud;100 and section 1(1)(b) and 1(2) of the Intimidation Act.101
The Constitutional Court has had opportunity to address the interests of women and children
in a number of judgments which are particularly notable given the scourge of gender-based
violence, and violence arising in the context of family relations, in South Africa. In respect of
the principle of legality, the Constitutional Court held in Masiya that the common-law crime
of rape (defined in terms of vaginal penetration of a female) should be developed to include
anal penetration of a female, but that this revised definition could not be applied retrospectively to the accused in this case.102 The common-law crime of rape was also in issue in
________________________
89 Act 32 of 2007, in terms of Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development 2014 1 SACR 327 (CC). See infra XI N.
90 S 12(1)(a) of the Regulation of Gatherings Act 205 of 1993, on the basis that it constituted an unjustifiable limitation of the right in s 17 of the Constitution to assemble, demonstrate, picket and petition, in
Mlungwana 2019 1 SACR 429 (CC).
91 Economic Freedom Fighters v Minister of Justice and Correctional Services supra, discussed infra VIII D.
92 Films and Publications Act 65 of 1996, s 27, in De Reuck v DPP, WLD 2003 2 SACR 445 (CC). The
court rejected the challenge to the constitutionality of this provision, which was based on the rights to
freedom of expression, privacy and equality, holding that there was no merit in the equality argument,
and that although the rights to freedom and expression were indeed infringed by the provision, such infringement was reasonable and justified in the light of the purpose of the legislation: the eradication of an
evil with grievously threatened the dignity of children (par 61).
93 In Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC), where a challenge to
the constitutionality of s 10 of the South African Schools Act 84 of 1996 was challenged on the basis of
the right to religious freedom (ss 15 and 31 of the Constitution).
94 Sexual Offences Act 23 of 1957, s. 20(1)(aA), in Jordan 2002 2 SACR 499 (CC). The minority of the
court disagreed, holding that the criminalisation of prostitution was unconstitutional on the basis of indirect and unfair gender discrimination. See infra XI J.
95 M 2004 1 SACR 228 (O), where it was held that any infringement of the right not to be discriminated
against on the basis of sexual orientation, the right to freedom and security of the person, and the right to
privacy was reasonable and justified. See infra XI L.
96 Thebus 2003 2 SACR 319 (CC). The constitutional challenge to “active association”, common purpose
founded on the right to dignity, the right to freedom and security of the person and the right to be presumed innocent until proven guilty was dismissed, with the court holding that the doctrine is rationally
connected to a lawful purpose, the combating of joint criminal activity by a group of persons acting together. See infra VII B.
97 Mamabolo 2001 1 SACR 686 (CC). The Constitutional Court held that the limitation on the right to
freedom of expression was justifiable, given the importance of protecting the integrity of the administration of justice, and more particularly the integrity of the judiciary. It was however held that the summary
procedure in terms of which a judge could summon a scandaliser to appear before him to answer the
charge unjustifiably infringed the right to a fair trial. See infra X A.
98 Osman v Attorney-General, Transvaal 1998 2 SACR 493 (CC), in respect of s 36 of the General Law
Amendment Act 62 of 1955. See infra XVIII E.
99 Hoho 2009 1 SACR 276 (SCA). See infra XVI B.
100 Friedman (1) 1996 1 SACR 181 (W). In response to a challenge based on the breadth of the crime, the
court held that while the crime was broadly defined, it was not too difficult to apply, and was not inconsistent with the Constitution. See infra XIX A.
101 Intimidation Act 72 of 1982, in Moyo v Minister of Police 2020 1 SACR 373 (CC). See infra XV B.
102 Masiya v DPP 2007 5 SA 30 (CC). See infra I F.
INTRODUCTION
25
Tshabalala,103 where the court held that the common purpose doctrine could apply even in the
case of such a crime, which could only be committed by the instrumentality of a person’s own
body. It was held that any exemption from liability on this basis was obsolete and had to be
discarded because its foundation was embedded in the system of patriarchy where women
were treated as mere chattels. Such an approach moreover ignored the fact that rape could be
committed by more than one person for as long as the others had the intention of exerting
power and dominance over the women, just by their presence.104 The application of the doctrine of common purpose to the common-law crime of rape was therefore based on the law
and logic of constitutional duty and international obligations.105 Finally, in relation to the
protection of children, it was held106 that the justification ground of disciplinary chastisement,
which protected reasonable and moderate parental chastisement from criminal liability, was
unconstitutional, in that it unjustifiably infringed the child’s right to dignity,107 as well as the
right to be free from all forms of violence.108
It is further noteworthy that the Constitutional era has also seen South Africa assume its role
on the world stage, and a number of statutes have been passed to give effect to international
obligations to combat transnational and international crimes.109
E CRIMINAL LIABILITY: A SUMMARY
1 General This summary of criminal liability is intended to help the person who, in reading
this book, is encountering criminal law for the first time. Its purpose is to give such a person a
perspective of the material to be discussed, to help him understand the subdivisions and
distinctions which will follow, and to help him appreciate clearly the relationship between the
different topics and the different prerequisites for liability.
Although criminal law (like law in general) is not an exact science like mathematics which
is governed by exact, immutable laws, jurists nevertheless endeavour to structure the rules of
this branch of the law. In so doing they develop and work with what might be called a certain
“grammar of criminal liability”. Such a structure or “grammar” enhances legal certainty and
enables the investigator to come to grips more readily with novel or unforeseeable sets of
facts.
The discussion which follows may be viewed as a very concise summary of the first half of
this book, and is intended to aid the student who is commencing the study of criminal law.
The book is divided into two parts. Part one deals with the general principles of criminal
law, in other words with those principles applicable to all crimes, irrespective of the definition
of each. Part two is devoted to a discussion of the most important specific crimes known to
our law, with the emphasis on those rules or requirements peculiar to each.
In the discussion which follows and throughout the book the perpetrator of the act – that is,
the accused or wrongdoer – will be referred to as X, and the complainant or victim will be
referred to as Y. When a third party is involved, he or she will be referred to as Z.
________________________
Tshabalala 2020 2 SACR 38 (CC). See infra VII B.
Tshabalala at par 54.
At par 98.
Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 1 SACR
113 (CC). See infra IV J.
107 S 10 of the Constitution.
108 S 12(1)(c).
109 These statutes include the Implementation of the Rome Statute of the International Criminal Court Act 27
of 2002; the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of
2004; the Implementation of the Geneva Conventions Act 8 of 2012; the Prevention and Combating of
Trafficking in Persons Act 7 of 2013; and the Prevention and Combating of Torture of Persons Act 13 of
2013.
103
104
105
106
26
SNYMAN’S CRIMINAL LAW
2 Requirements for liability
(a) Legality The very first question to be asked in determining somebody’s criminal liability is whether the type of conduct forming the basis of the charge is recognised in our law as a
crime. A court may not convict a person and punish him merely because it is of the opinion
that his conduct is immoral or dangerous to society or because, in general terms, it “deserves”
to be punished. A court must be certain that X’s alleged conduct (eg, “the removing of a minor
from her parental home without the consent of her parents in order to marry her” – conduct
which amounts to the crime of abduction) is recognised by the law as a crime. This very
obvious principle is known as the “principle of legality”.
(b) Act or conduct Once it is clear that the law regards the conduct as a crime, the next step
is to enquire whether there was conduct on the part of X. By “conduct” is meant an act or an
omission. Since the punishment of omissions is more the exception than the rule, this requirement of liability is mostly referred to as the “requirement of an act”.
The requirement of an act or conduct incorporates the principle that mere thoughts or even
decisions are not punishable. Before there can be any question of criminal liability, X must
have started converting his thoughts into action. Furthermore, for the purposes of criminal law
conduct can lead to liability only if it is voluntary. Conduct is voluntary if X is capable of
subjecting his bodily or muscular movements to his will or intellect. For this reason the bodily
movements of, for example, a somnambulist are not considered by the law to amount to an
“act”.
An omission – that is, a failure by X to perform active conduct – can lead to liability only if
the law imposed a duty on X to act positively and X failed to do so.
(c) Conduct must comply with definitional elements of crime The following general requirement for criminal liability is that X’s conduct must comply with the definitional elements
of the crime in question. What does “the definitional elements” mean? It is the concise description of the type of conduct proscribed by the law and the circumstances in which it must
take place in order to constitute a crime. By looking at the definitional elements, one is able to
see how one type of crime differs from another. For example, the definitional elements of
robbery are “the violent removal and appropriation of movable corporeal property belonging
to another”.
The definitional elements contain not merely a description of the type of conduct proscribed
(eg, “injure”, “make a declaration” or “sexual intercourse”) but may also contain a description
of the way in which the act must be performed (eg, “violently”), the person performing the act
(eg, “a licence holder”), the person or object in respect of which the act must be performed
(eg, “a minor”), the place where the act must take place (eg, “on a public road”), a particular
time during which the act must take place, and so forth.
Every particular crime has requirements which other crimes do not have. A study of the particular requirements of each separate crime is undertaken in the second half of this book. The
requirement for liability with which we are dealing here is simply that X’s conduct must comply
with these definitional elements.
(d) Unlawfulness A lay person would probably be inclined to think that once the requirements discussed above have been complied with, nothing more is required for holding X liable
and that he may be convicted. However, somebody who is versed in the principles of criminal
law will know that there are still two very important further general requirements of liability,
namely unlawfulness and culpability, which must be complied with before X can be held
liable. The reason why a lay person will in all probability not think of these two requirements
is because they are, as it were, “unwritten” or “invisible”: they are requirements of liability
which are not always expressly spelt out in (especially the statutory) definition of the crime.
Their existence accordingly creates the possibility that X may rely on defences which are not
expressly spelt out in the definitional elements of the crime in question.
INTRODUCTION
27
We next consider the next general requirement for liability, namely unlawfulness. The mere
fact that X had committed an act and that such act complies with the definitional elements of
the crime does not necessarily mean that it is also unlawful in the sense in which this word is
used in criminal law. If a policeman X gets hold of a criminal on the run by diving him to the
ground, X’s act accord with the definitional elements of the crime of assault, but his act is not
unlawful and he will therefore not be guilty of assault. To take another example: X, while
driving his motor car, exceeds the speed limit. This act complies with the definition of the
proscription of the offence “to drive a motor car on a public road at a speed in excess of (say)
120 kilometres per hour”. If, however, he does this in order to get his gravely ill child to
hospital in time for emergency treatment, his conduct will not be unlawful.110
“Unlawful” means, of course, “contrary to law”, but by “law” in this context is meant not
merely the rule contained in the definitional elements of the crime, but the totality of the rules
of law, and this includes rules which in certain circumstances allow a person to commit an act
which is contrary to the “letter” of a legal prohibition or norm. In practice there are a number
of well-known situations where the law tolerates an act which infringes the “letter” of the law
as set out in the definitional elements. These situations are known as grounds of justification.
Well-known grounds of justification are private defence (which includes self-defence), necessity, consent and official capacity. In the examples above the act of the policeman is justified
by the ground of justification known official capacity, and that of the father who exceeds the
speed limit by necessity.
If X’s conduct corresponds with the definitional elements, the conduct may be described as
“provisionally unlawful”. Before one can finally describe it as unlawful, it must be clear that
there is no justification for the conduct. Grounds of justification are situations in which the
conduct at first glance seems to fall within the letter of the prohibition, but where closer scrutiny
reveals that the law in fact tolerates such conduct. The reason why the law tolerates it (ie, regards
it as not being unlawful) is because the particular conduct protects a value or interest which in
the eyes of the law is more important than the value or interest which the conduct infringes. If
the meaning of the word unlawful within the present context causes any problem, the problem
can be overcome by always replacing the word “unlawful” with “unjustified” or “without
justification”.
(e) Culpability Even if the conduct corresponds not only to the definitional elements but is
also unlawful, it still does not necessarily mean that X is criminally liable. There is still one
last important requirement which must also be complied with, namely that X’s conduct must
have been culpable. In the legal literature, especially the older literature, as well as in the
terminology used by the courts, this element is described by the Latin expression mens rea.
The culpability requirement means that there must be grounds upon which X may, in the eyes
of the law, personally be blamed for his unlawful conduct. Here the focus shifts from the act to
the actor, that is, X himself, his personal abilities, knowledge, or lack thereof. The culpability
requirement comprises two components or “sub-requirements”. Both these sub-requirements
must be complied with before one can draw the conclusion that X’s act was culpable.
The first of these sub-requirements is that of criminal capacity (often abbreviated merely to
“capacity”). This means that at the time of the commission of the act X must have had certain
mental abilities. A person cannot legally be blamed for his conduct unless he is endowed with
these mental abilities. The mental abilities X must have are first, the ability to appreciate the
wrongfulness of his act (ie, to distinguish between “right” and “wrong”), and secondly, the
ability to act in accordance with such an appreciation. Examples of categories of people who lack
criminal capacity are mentally ill (“insane”) persons and young children.
________________________
110 Pretorius 1975 2 SA 85 (SWA).
28
SNYMAN’S CRIMINAL LAW
The second sub-requirement (or “leg” of the culpability requirement) is that X’s act must be
either intentional or negligent. Intention is a requirement for most crimes, but there are also
crimes requiring only negligence. If intention is required, it means that X must will the fulfilment (realisation) of the definitional elements, knowing that his conduct is unlawful; or that he
must foresee the possibility of his conduct fulfilling the definitional elements and being
unlawful but nevertheless proceed with it. He must therefore know or foresee that the type of
conduct in which he is engaging is criminally punishable, that it takes place in circumstances
in which it fulfils the definitional elements of the crime concerned, and that it is unlawful (ie,
unjustifiable). If he does not know or foresee it, his ignorance or mistake excludes intention.
The following are two examples of mistakes excluding intention: (a) X takes property belonging to Y in the belief that Y had given him permission to take it, whereas Y had in fact not
given such permission. Y then lacks the intention and culpability required for theft. (b) X
wants to shoot a baboon. In the dusk he sees a figure crouching which he believes to be a
baboon, and shoots. The figure struck by the bullet turns out to be, not a baboon, but a human
being. X then lacks the intention and culpability required for murder.
Some crimes require negligence instead of intention. An example of such a crime is culpable
homicide. This crime is committed if a person unlawfully and negligently causes another’s
death. By negligence is understood, in brief, that X’s conduct does not comply with the standard of care required by the law in the particular circumstances, or (as the same criterion is usually expressed in another way) that X fails to act in the way in which a reasonable person would
act in the circumstances.
3 Different ways of grouping requirements Immediately above, under the heading “Requirements for liability”, five requirements for liability have been described. If one regards
capacity as a requirement separate from culpability, as some writers do, this means that six
different general requirements for liability can be identified, namely:
1 legality;
2 conduct;
3 compliance with definitional elements;
4 unlawfulness;
5 capacity; and
6 culpability.
This list contains all possible general requirements for liability. Is it not possible to reduce the
requirements to a smaller number in order to simplify the construction of criminal liability?
The answer to this question is clearly affirmative. There are different ways in which to simplify
the description of liability by slightly rearranging the grouping of the requirements or “elements” for liability. In the discussion which follows these different ways are briefly considered.
One cannot describe all six of these requirements as “elements of a crime”. The first requirement, that of legality, is never regarded as an element of a crime in the sense that the
accused, by his conduct and subjective attributes, must comply with this requirement. It is only
necessary for the accused to comply with requirements 2 to 6 above. This consideration is
underlined by the fact that in more than ninety-nine per cent of criminal cases X is charged
with a crime that is so well known (eg, assault, theft, culpable homicide) that the court will not
waste its time investigating whether in our law there is such a crime as the one with which X
is being charged. Only in fairly exceptional cases is it necessary for the court to study, for
example, a statute in order to ascertain whether what X is charged with really constitutes a
crime. This is another reason why the principle of legality is not regarded as an “element” of a
crime.
As far as the remaining requirements (2 to 6 above) are concerned, there are different ways
of grouping them, depending on the degree of abstraction that is used.
INTRODUCTION
29
Firstly, at a very high level of abstraction, it is possible to group the requirements into only
two categories, namely wrongdoing and culpability. Wrongdoing is an umbrella concept comprising requirements 2 to 4 listed above. If one follows this dichotomy, culpability invariably
includes capacity. This grouping of the elements of liability into only two categories is well
known in continental jurisprudence. It is also well known in Anglo-American legal systems,
where requirements 2 to 4 are described as “actus reus” and 5 and 6 as “mens rea”. (These
two Latin phrases will be avoided in this book, which seeks to explain criminal-law concepts
in language understandable to everybody. These phrases are also avoided by modern English
writers on criminal law. The South African courts, however, regrettably still regularly use this
obscure terminology.) Classifying these requirements into only two groups is not advisable,
because it is an oversimplification of what is actually a more complex issue.
Secondly, many writers in South Africa divide the general requirements for liability into
three categories, namely the act, unlawfulness and culpability.111 In this classification capacity
is deemed to form part of culpability. Compliance with the definitional elements is completely
ignored as a separate requirement; the indispensable definitional elements of a crime are
artificially forced into either the act or unlawfulness. This grouping of the requirements must
be rejected, as must any categorisation of the general requirements which ignores compliance
with the definitional elements as a separate requirement. No crime, not even the simplest one,
consists of only an act, unlawfulness and culpability.
Thirdly, there are writers who combine requirements 2 and 3 above. The resultant combined
requirement is then called the “realisation of the definitional elements”. The requirement of an act
is viewed as forming part of this “realisation” or “fulfilment”.112 These writers also view liability
as consisting of three elements, namely the above-mentioned element (which incorporates that of
an act), unlawfulness and culpability. This grouping of the requirements does have its merits, but
it is submitted that it is better and more logical to separate the requirement of an act from that of
realisation of the definitional elements. The concept “realisation of the definitional elements” is
too abstract; it is better to base the construction of liability on the better known and more concrete concept of an act.
Fourthly, there is an arrangement or grouping of requirements which to my mind is the best
one, namely that whereby the general requirements for liability are divided into four categories, namely the act (or conduct), compliance with the definitional elements, unlawfulness and
culpability. In this subdivision, capacity forms part of culpability. It is also possible to regard
capacity as a requirement separate from culpability, in which case there would be five instead
of four categories. It is submitted that it is better to regard capacity as part of culpability, the
reason for this being the normative (as opposed to the psychological) nature of the concept of
culpability.113 This four-part arrangement of the requirements for liability will be followed in
this book, the four parts or “elements” being conduct, compliance with the definitional elements, unlawfulness and culpability.
The following description of criminal liability combines all four of the above requirements:
A person commits a crime if he engages in conduct which accords with the definitional elements of the crime in question, which is unlawful and culpable. More concisely expressed, a
crime consists in unlawful, culpable conduct which accords with the definitional elements. If
one wants to describe criminal liability in less technical language, one can state that crime is
unjustifiable, culpable conduct which accords with the definition of a crime.
4 Sequence of requirements It is of the utmost importance to bear in mind that the investigation into the presence of the four requirements or elements of liability, set out above, follow
________________________
111 This is, in broad outline, the classification followed in De Wet and Swanepoel chs 3–5.
112 See, eg, Badenhorst 358–385 and the discussion in Eser and Fletcher 62–63.
113 See the discussion infra V A 9–10 of the psychological and the normative theories of culpability.
30
SNYMAN’S CRIMINAL LAW
a certain sequence. It is the sequence in which the requirements were set out above. If the investigation into whether there was (voluntary) conduct on the part of X reveals that there was
in fact no such conduct, it means that X is not guilty of the crime in question and the matter is
concluded. It is then unnecessary to investigate whether further requirements such as unlawfulness and culpability have been complied with.
An investigation into whether the conduct complied with the definitional elements is necessary only once it is clear that the conduct requirement has been complied with. Again, only if it
is clear that the conduct complied with the definitional elements is it necessary to investigate
the question of unlawfulness, and only if the latter requirement has been complied with is it
necessary to investigate whether X’s act was also culpable. An inquiry into a later requirement
therefore presupposes the existence of the previous requirements.
The rule relating to the sequence in which the investigation into criminal liability takes
place can be depicted graphically as follows:
Was there a voluntary act or
omission?
No
Yes
Does the conduct comply with the
definitional elements of the crime?
No
Yes
Was the conduct unlawful?
No
Yes
Was the conduct culpable?
No
Yes
Accused liable
Accused NOT liable
5 Murder and culpable homicide In conclusion, a hint to the reader who has done no previous reading on criminal law: in the discussion of the general principles which follows, the
principles will often be illustrated by references to the crimes of murder and culpable homicide.
In order to follow the discussion from the beginning, it is necessary to know what the definitions of these two crimes are. Murder is the unlawful, intentional causing of the death of
another person. Culpable homicide is the unlawful, negligent causing of the death of another
person. It will be noticed that the only point of difference between these two crimes is the form
of culpability required for each: intention for murder, and negligence for culpable homicide.
INTRODUCTION
31
F THE PRINCIPLE OF LEGALITY
1 Introduction The modern state has expanded its powers to such an extent that today,
more than ever, it has become necessary to protect the freedom of the individual. The principle
of legality plays an important role in this regard. As it upholds the utility of fixed and certain
rules, the principle of legality is at the core of the rule of law doctrine.114 In its broadest sense,
the principle of legality can be described as a mechanism to ensure that the state, its organs
and its officials do not consider themselves to be above the law in the exercise of their functions but remain subject to it. In the field of criminal law the principle fulfils the important
task of preventing the arbitrary punishment of people by state officials, and of ensuring that
the determination of criminal liability and the passing of sentence correspond with clear and
existing rules of law. A legal system which observes the rule of law is closely related to
respect for human dignity, in that it attempts to guide each person’s conduct by affecting the
circumstances of their action, thus operating from the presupposition that they are rational
autonomous creatures, and attempting to affect their actions and habits by in turn affecting
their deliberations.115 The principle of legality in criminal law is also known as the nullum
crimen sine lege principle. (The Latin words, literally translated, mean “no crime without a
law”.)
2 Definition A definition of the principle of legality, embodying its most important facets,
can be formulated as follows:
1 An accused may not be found guilty of a crime unless the type of conduct with which
he is charged:
(a) has been recognised by the law as a crime;
(b) in clear terms;
(c) before the conduct took place;
(d ) without the court having to stretch the meaning of the words and concepts in the
definition to bring the particular conduct of the accused within the compass of the
definition, and
2 After conviction an accused may not be sentenced unless the punishment also complies
with the four principles set out immediately above under 1(a) to (d).116
3 Rules embodied in principle The principle of legality in criminal law embodies the
following five rules or principles:
(a) a court may find an accused guilty of a crime only if the type of conduct performed by
him is recognised by the law as a crime – in other words, a court itself may not create a
crime (the ius acceptum principle, which appears in item 1(a) of the definition given
above);
(b) a court may find an accused guilty of a crime only if the kind of act performed by him
was already recognised as a crime at the time of its commission (the ius praevium principle, which appears in item 1(c) of the definition given above);
(c) crimes should not be formulated vaguely (the ius certum principle, which appears in item
1(b) of the definition given above);
________________________
114 Mathews 47.
115 Raz 1977 Law Quarterly Review 195 205.
116 As to the different sub-rules embodied in the principle, see Western Areas Ltd 2004 1 SACR 429 (W)
437.
32
SNYMAN’S CRIMINAL LAW
(d ) a court should interpret the definition of a crime narrowly rather than broadly (the ius
strictum principle, which appears in item 1(d) of the definition given above);
(e) after X has been found guilty, the above-mentioned four principles must also be applied
mutatis mutandis when it comes to imposing a sentence; this means that the applicable
sentence (regarding both its form and extent) must already have been determined in
reasonably clear terms by the law at the time of the commission of the crime, that a court
must interpret the words defining the punishment narrowly rather than widely, and that a
court is not free to impose any sentence other than the one legally authorised (the nulla
poena sine lege principle, which can be further abbreviated to the nulla poena principle).
In the discussion which follows each of these five principles will be analysed in greater
depth. For convenience they will sometimes be referred to by their concise Latin descriptions
or “tags” mentioned above. The rules embodied in the principle of legality as well as their
subdivisions may be set out as follows in a diagram:
Principle of legality
ius
acceptum
ius
praevium
in
commonlaw crimes
in
statutory
crimes
ius
certum
ius
strictum
nulla
poena
After a discussion of the rationale of the principle as well as of the recognition of the principle
in our Constitution, the sequence of the rest of the discussion of this principle will correspond
to the sequence in which the rules have been arranged in the above diagram.
4 Rationale The rationale or basis of the principle of legality is the policy consideration that
the rules of the criminal law ought to be as clear and precise as possible so that people may
find out, with reasonable ease and in advance, how to behave in order to avoid committing
crimes. In American literature this idea is often referred to as “the principle of fair warning”.117 For example, if it is possible for the legislature to create a crime with retrospective
effect and consequently for a court to find X guilty of a crime even though the type of act he
committed was not punishable at the time of its commission, an injustice is done since X is
punished for behaviour that he could not have identified as punishable before its commission.
It is similarly difficult or even impossible for a person to know in advance precisely what kind
of conduct is punishable if the definitions of crimes are vague or their content problematic, or
if a court has the power to decide for itself whether a certain type of conduct that had previously gone unpunished should in fact be punished.
The principle of legality has its origin in the Age of Enlightenment, and more specifically in
the ideas of a group of thinkers in the seventeenth and especially the eighteenth century who
rebelled against the obscurities of the Middle Ages and the excessive power of royalty, the
aristocracy and the Church.
5 Recognition of the principle of legality in the South African Constitution The principle of legality is incorporated in section 35(3)(l) and (n) of the Constitution, 1996. Section 35
________________________
117 La Fave and Scott 104; Dressler 41–42.
INTRODUCTION
33
forms part of Chapter 2 of the Constitution, which contains the Bill of Rights. The Bill of
Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs
of state.118 This means that every provision in a statute or common law which is in conflict
with the Bill of Rights may be declared null and void by a court.
Section 35(3) provides that every accused person has a right to a fair trial, and paragraph (l)
of this subsection provides that this right to a fair trial includes the right not to be convicted
for an act or omission that was not an offence under either national or international law at the
time it was committed or omitted. A further paragraph in this subsection, namely paragraph
(n), contains a further provision bearing upon the principle of legality. According to paragraph
(n) the right to a fair trial includes the right to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence has been changed between the time
that the offence was committed and the time of sentencing.
Section 35(3)(l) clearly incorporates the ius praevium principle. By implication it also contains the ius acceptum principle: if a court may not find a person guilty of an act or omission
that was not an offence at the time it was committed or omitted (ius praevium), it follows by
necessary implication that a court does not have the power to create a crime (ius acceptum). In
other words, if a court had the power to create crimes, it would mean that a court had the
power to convict a person of a crime even though X’s act did not constitute a crime at the time
it was performed.
Section 35(3)(n) relates to the nulla poena sine lege principle, that is, the role of the principle of legality in the field of the imposition of punishment.
Section 35(3)(l) and (n) contains no provision relating directly to the ius certum and ius
strictum principles, but the courts may interpret the provisions of the section in such a way
that it relates to these aspects of the principle of legality as well.119
The substantive criminal law of South Africa is not codified. The most important crimes, as
well as almost all the general principles of liability, are derived from common law and are
therefore not contained in legislation. South Africa is one of only a small number of countries
or jurisdictions in which criminal law is uncodified. This position has been criticised, on the
basis that the absence of a codification hampers the smooth operation of the principle of
legality in this country, although it does not render it impossible.120. In the place of a criminal
code, a large collection of authoritative decisions lays down the requirements for every common-law crime as well as the general principles of criminal law. However, it is not always
easy for a lay person to ascertain what the definitions of crimes and the general rules of
criminal liability are.
6 The ius acceptum rule in common-law crimes What follows is a discussion of the
various rules embodied in the principle of legality as identified above and which are referred
to by their concise Latin descriptions: ius acceptum, ius praevium, ius certum, ius strictum and
nulla poena.
First to be discussed is the ius acceptum principle. This principle implies that a court may
not find a person guilty of a crime unless the type of conduct he performed is recognised by the
law as a crime. In other words, a court itself may not create new crimes. Therefore, when answering the question “what constitutes criminal conduct?” the court is bound by the “law as we
________________________
118 S 8(1) of the Constitution.
119 See the discussion infra pars 9 and 10.
120 For a draft criminal code of South Africa, containing not only definitions of common-law crimes but also
of the most important general principles of liability, see Snyman A Draft Criminal Code for South Africa.
With a Commentary. The introductory chapter of this work contains a plea for the codification of our
criminal law as well as a discussion of the style which such a codification ought to adopt. See also
Snyman Huldigingsbundel Strauss 255.
34
SNYMAN’S CRIMINAL LAW
have received it to date”, that is, the ius acceptum. In South Africa ius acceptum must be
understood to denote not only the common law but also existing statutory law. The ius acceptum principle is anchored in our law by virtue of the provisions of section 35(3)(l) of the
Constitution, which provides that every accused has a right to a fair trial, which includes the
right not to be convicted for an act or omission that was not an offence at the time it was
committed or omitted.
It is convenient to discuss the application of this principle under two headings: first, the
application of the rule to common-law crimes and secondly, its application to statutory crimes.
Certain types of conduct might be wrong from a moral or religious point of view, but might
nevertheless not be prohibited by law. Even if these acts are prohibited by law, this does not
necessarily mean that they are crimes: perhaps they may give rise to civil-law liability only or
to the authorities’ taking certain steps in terms of administrative law. Not all transgressions of
the law constitute crimes. For example, a simple breach of contract is not a crime. Only when
specific conduct is declared a crime by law (statutory or common law), is there a possibility of
criminal liability. Consequently, a court is not empowered to punish conduct simply because it
“deserves” to be punished according to the judge’s conception of morality, religion or even
politics. The only way in which a new crime can be created is by means of legislation.121
Although a court may not create a crime or extend the scope of an existing crime, it may
create a new defence or extend the scope of an existing defence. It is clear that in doing so the
accused’s rights are not adversely affected.
7 The ius acceptum rule in crimes created by parliament If parliament wishes to create a
crime, an Act purporting to create such a crime will best comply with the principle of legality if
it expressly declares (a) that the particular type of conduct is a crime, and (b) what the parameters are of the punishment a court must impose if it finds a person guilty of the commission of
such a crime.
However, sometimes it is not very clear from the wording of the Act whether a section or
provision of the Act has indeed created a crime or not. In such a case, the function of the principle of legality is the following: a court should only assume that a new crime has been created if it
appears unambiguously from the wording of the Act that a crime has in fact been created. If the
Act does not expressly state that a particular type of conduct is a crime, the court should be
slow to hold that a crime has in fact been created.122 This consideration or rule corresponds to
the presumption in the interpretation of statutes that a provision in an Act which is ambiguous
must be interpreted in favour of the accused.123
In this regard it is feasible to distinguish between legal norms, criminal norms and criminal
sanctions that may be created in an Act.
• A legal norm in an Act is merely a rule of law, the infringement of which is not a crime.
• A criminal norm is a provision in an Act stating clearly that certain conduct constitutes a
crime.
• A criminal sanction is a provision in an Act prescribing the parameters of the punishment
a court must impose once a person has been found guilty of the particular crime.
________________________
121 Malgas 2001 1 SACR 469 (SCA) 472g–h. See also Solomon 1973 4 SA 644 (C), in which the court
refused to recognise the existence of a common-law crime named “conflagration”.
122 See Frederiksen 2018 1 SACR 29 (FB) where the court refused to convert the legal and moral norms
created in the National Health Act 61 of 2003 into criminal offences where such offences had not been
explicitly created by the legislature.
123 Milton and Cowling Introduction 1–16–19; Majola 1975 2 SA 727 (A) 735; Klopper 1975 4 SA 773 (A)
780. In Van Rooyen 2002 1 SACR 660 (T) the court refused to hold that a mere provision in an Act placing a duty on a police officer to render certain assistance, created a crime.
INTRODUCTION
35
The difference may be illustrated by the following example. A statutory prohibition may be
stated in one of the following three ways:
(a) You may not travel on a train without a ticket.
(b) You may not travel on a train without a ticket and anybody contravening this provision
shall be guilty of a criminal offence.
(c) You may not travel on a train without a ticket and anybody contravening this provision
shall be guilty of an offence and punishable upon conviction with imprisonment for a
maximum period of three months or a maximum fine of R1 000, or both such imprisonment and fine.
Provision (a) contains a simple prohibition that constitutes a legal norm, but not a norm in
which a crime is created. Although non-fulfilment of the regulation may well lead to administrative action (such as putting the passenger off at the next stop) it does not contain a criminal
norm. A court will not, without strong and convincing indications to the contrary, hold that
such a regulation has created a crime.124
Provision (b) does contain a criminal norm, because of the words “shall be guilty of an
offence”. However, it does not contain a criminal sanction because there is no mention of the
punishment that should be imposed.
Provision (c) contains both a criminal norm and criminal sanction. The criminal sanction is
contained in the words “and punishable upon conviction with imprisonment for a maximum
period of three months or a maximum fine of R1 000, or both such imprisonment and fine”.
What is the position if the legislature creates a criminal norm only, but remains silent on the
criminal sanction, as in provision (b) above? Such a situation arose squarely in DPP, Western
Cape v Prins.125 The very important Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (sometimes loosely referred to as the “Sexual Offences Act”),
which reformulated all the sexual offences in our law, clearly stated that persons who committed the acts described in the Act, such as rape and sexual assault, were guilty of a crime, but
the Act failed to set out any punishment to be imposed upon conviction for such crimes. The
question which the Supreme Court of Appeal had to decide was whether the provisions in the
Act referred to above nevertheless created crimes. The court answered the question affirmatively. The decision is largely based upon principles relating to the interpretation of statutes,
and more particularly the provisions of section 276(1) of the Criminal Procedure Act 51 of
1977, which provides that a person convicted of a crime may receive any of a number of sentences listed, such as imprisonment, a fine and correctional supervision. The court held that
section 276(1) was a general provision empowering courts to impose sentences in respect of all
crimes, both common-law and statutory, where there is no other provision in law prescribing
the sentence or maximum sentence that could be imposed for a specific crime. The extent of the
punishment is in the discretion of the court, subject only to provisions limiting a court’s powers
of punishment, as is the case in Magistrate’s Courts. This judgment affords strong support for
the proposition that if parliament creates a crime but fails to specify the punishment, the principle of legality has indeed been complied with, provided it is clear from the legislative provision that the prohibition is described as an offence and that parliament intended to create an
offence.
________________________
124 Bethlehem Municipality 1941 OPD 227; La Grange 1991 1 SACR 276 (C); Theledi 1992 1 SACR 336
(T) 337a–b; Smit 2007 2 SACR 335 (T). Contrast, however, Forlee 1917 TPD 52. In Frederiksen supra
par 14, the Forlee decision is described as contrary to the principle of legality and clearly wrong, and
contrary to s 35(3)(l) of the Constitution. An example of a provision in a statute creating a legal, but not a
criminal norm can be found in s 165(3) of the Constitution, 1996, which provides: “No person or organ
of state may interfere with the functioning of the courts.” The section does not provide that contravention
of the prohibition constitutes a crime.
125 2012 2 SACR 183 (SCA), discussed by Terblanche and Jordaan 2012 SACJ 379.
36
SNYMAN’S CRIMINAL LAW
In the unlikely event of a statutory provision containing a criminal sanction, but not a criminal norm, in all probability the court will decide that the legislature undoubtedly intended to
create a crime, and will assume that a crime was indeed created.126
Although there are some cases in which the courts have not adhered strictly to abovementioned principles,127 there are also some other, more recent, cases in which the courts, after
studying the Act as a whole, correctly refused to accept that the legislature intended to create a
crime by merely inserting a legal norm without a criminal norm.128 The latter line of cases is to
be preferred.
8 Prohibition on the creation of crimes with retrospective effect (ius praevium) The
principle of legality entails that no-one may be found guilty of a crime unless at the moment it
took place, his conduct was already recognised by law as a crime. It follows that the creation
of a crime with retrospective effect (ie, the ex post facto creation of crimes) is in conflict with
the principle of legality. This application of the principle of legality is known as the ius praevium rule.
The ius praevium principle is incorporated in section 35(3)(l) of the Constitution, which
provides that every accused has a right to a fair trial, which includes the right not to be convicted for an act or omission that was not an offence under either national or international law
at the time it was committed or omitted. This means that any provision by any legislative body
which creates a crime with retrospective effect is null and void.
9 Crimes must be formulated clearly (ius certum) Even if the ius acceptum and the ius
praevium principles discussed above are complied with, the principle of legality can still be
undermined by the creation of criminal norms which are formulated vaguely or unclearly.129 If
the formulation of a crime is unclear or vague, it is difficult for the subject to understand
exactly what is expected of him. At issue here is the ius certum principle. An extreme example
of an excessively widely formulated criminal prohibition would read as follows: “Anyone who
commits an act which is harmful to the community commits a crime.”130
One of the reasons why an excessively widely formulated criminal provision violates the
principle of legality is that such a provision can serve as a smoke-screen behind which the
state authority can “hide” a particular type of act which it wishes to proscribe but which, for
tactical reasons, it does not wish to name expressly.
Although the Constitution does not expressly provide that vague or unclear penal provisions
may be struck down, it is quite possible and even probable that section 35(3)(l) (which provides that every accused has a right to a fair trial, which includes the right not to be convicted
for an act or omission that was not an offence at the time it was committed or omitted) will be
________________________
126 Fredericks 1923 TPD 350 353; Rabie, Strauss and Maré 82; Burchell and Milton 99.
127 Forlee 1917 TPD 52 (criticised by De Wet and Swanepoel 46–47; Rabie, Strauss and Maré 87 as well as
in Francis 1994 1 SACR 350 (C) 354–356); Langley 1931 CPD 31 33; Baraitser 1931 CPD 418 and
Grové 1956 1 SA 507 (SWA) 508–509.
128 La Grange 1991 1 SACR 276 (C); Theledi 1992 1 SACR 336 (T); Francis 1994 1 SACR 350 (C); Van
Rooyen 2002 1 SACR 661 (T).
129 Jordan 2002 2 SACR 499 (CC) 518c–d.
130 An example of a vaguely formulated statutory provision creating a crime can be found in the erstwhile s
1(1)(b) of the Intimidation Act 138 of 1991 (declared unconstitutional in Moyo v Minister of Police 2020
1 SACR 373 (CC)), which provides inter alia that “any person who . . . conducts himself in such a manner . . . that it might reasonably be expected that the natural and probable consequences thereof would be
that a person perceiving the act fears for his own safety or the safety of his property or the security of his
livelihood, or for the safety of any other person or the safety of the property of any other person” (etc)
commits the crime of intimidation. The “cosmic scope” of this provision was criticised in Holbrook
[1998] 3 All SA 597 (E) 601 (where the court stated that “[t]his section is so widely couched that it may
well be construed that a person who throws a cat into a swimming pool may well be guilty of an offence”) and Motshari 2001 1 SACR 550 (NC) 554–556.
INTRODUCTION
37
interpreted in such a way that vaguely defined crimes created in any legislation may be declared null and void. This “void-for-vagueness” rule may be based on either X’s right to a fair
trial in general or on the principle that if a criminal norm in legislation is vague and uncertain,
it cannot be stated that the act or omission in question in fact constituted an offence prior to
the court’s interpretation of the legislation.
It is also possible to base the operation of the ius certum provision in our law on the provisions of section 35(3)(a) of the Constitution, which provides that the right to a fair trial includes the right to be informed of the charge with sufficient detail to answer it. In
Lavhengwa131 it was held that the right created in section 35(3)(a) implied that the charge
itself had to be clear and unambiguous. This, according to the court, would only be the case if
the nature of the crime with which X is charged is sufficiently clear and unambiguous to
comply with the constitutional right to be sufficiently informed of the charge. It was further
held that, in order to comply with the requirement of sufficient clarity, one should bear in
mind, first, that absolute clarity is not required; reasonable clarity is sufficient;132 and secondly, that a court which has to decide whether a provision is clear or vague should approach the
legislation on the basis that it is dealing with reasonable and not foolish or capricious people.133
It is not only statutory criminal provisions that may, on the ground of vagueness, be declared null and void in terms of the Constitution, but also provisions of common law that are
vague and uncertain.134
However, it is impossible to comply with the ius certum principle in every respect. It is impossible in any legal system – even one which best upholds the principle of legality – to
formulate legal rules in general, and criminal provisions in particular, so precisely and concretely that there will never be any difference of opinion regarding their interpretation and
application.135 Legal rules are not meant to apply merely to an individual person or to an event
which occurs only once; it is in the nature of legal rules that they be formulated in general
terms. Apart from this, language is not in all respects a perfect means of communication, and
even concepts such as “certainty” and “clarity” are relative and a matter of degree. It is precisely for this reason that the principle of legality can never be complied with literally and
fully in any legal system.
10 Provisions creating crimes must be interpreted strictly (ius strictum) The fourth
application of the principle of legality is to be found in the ius strictum rule. Even if the abovementioned three aspects of the requirement of legality, that is, ius acceptum, ius praevium and
ius certum, are complied with, the general principle can nevertheless be undermined if a court
________________________
131 1996 2 SACR 453 (W) 483–485. See also the discussion of the role of vagueness in the interpretation of
132
133
134
135
penal provisions in National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 2 SACR
102 (W) 117–119.
Cf Pretoria Timber Co (Pty) Ltd 1950 3 SA 163 (A) 176H; Engeldoe’s Taxi Service (Pty) Ltd 1966 1 SA
329 (A) 339G.
Cf O’Malley 1976 1 SA 469 (N) 474G; Mahlangu 1986 1 SA 135 (T) 141G–H.
In Friedman (1) 1996 1 SACR 181 (W) it was argued on behalf of X that the rule in regard to the crime
of fraud that the prejudice need be neither actual nor of a patrimonial nature, was unconstitutional on the
ground of vagueness. The court rejected the argument. It is noteworthy that nowhere in the judgment did
the court call into question the principle that rules of common law may be declared null and void on the
ground of vagueness.
Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC) par 108. The violation of the ius
certum principle was contended for in Savoi v NDPP 2014 1 SACR 545 (CC), in the context of the definition of offences under the Prevention of Organised Crime Act 121 of 1998. However this challenge was
rejected by the court, which held, citing (in par 16) the dictum in Affordable Medicines Trust v Minister
of Health par 108 where it was held in respect of the doctrine of vagueness that what is required of a law
is not “perfect lucidity” but rather that the law must “indicate with reasonable certainty to those who are
bound by it what is required of them so that they may regulate their conduct accordingly”.
38
SNYMAN’S CRIMINAL LAW
is free to interpret the words or concepts contained in the definition of the crime widely, or to
extend their application by analogous interpretation. The Constitution contains no express
provision relating to the ius strictum principle. However, it is submitted that the provisions of
section 35(3) – and thereunder paragraphs (a) and (l) – are wide enough to incorporate this
principle.
There is a well-known rule in the interpretation of statutes that crime-creating provisions in
both Acts of parliament and subordinate legislation must be interpreted strictly.136 Sometimes
this method of interpretation is referred to as interpretation in favorem libertatis. The underlying idea here is not that the Act should be interpreted to weigh against the state and in favour
of X, but only that where doubt exists concerning the interpretation of a criminal provision, X
should be given the benefit of the doubt.137
The rule that provisions which create crimes or describe criminal conduct should be interpreted strictly rather than broadly, also applies to common-law crimes. A court is not free to
extend the definition or field of application of a common-law crime by means of a wide
interpretation of the requirements for the crime.138 Therefore, if there is uncertainty about the
scope of one of the elements of a common-law crime, the court should interpret the definition
of such element strictly. A court may be unsure whether, according to our old common-law
sources, a specific kind of conduct can be brought under a particular recognised common-law
crime. (Often, there is a difference of opinion among our common-law writers on certain
points of law.) A consistent application of the principle of legality implies that in such cases, a
court must accept that the conduct does not fall under the definition of such a crime. It is
preferable to leave it to the legislature (if it so wishes) to declare that such conduct amounts to
the commission of a particular crime (or to the commission of a new statutory crime).139
On the other hand it would be wrong to infer from the above that if at any time a person is
charged with a common-law crime and the facts of the case do not clearly correspond with
those of any examples of the crime quoted by the common-law authorities, X should, therefore, be acquitted. The principle of legality does not mean that a court should so slavishly
adhere to the letter of the old sources of the law that common-law crimes are deprived of
playing a meaningful role in our modern society – a society which in many respects differs
fundamentally from the society of centuries ago in which our common-law writers lived.
There are certain cases in which South African courts were prepared to regard certain types of
conduct as amounting to the commission of common-law crimes, in spite of the fact that the
common-law writers did not cite the commission of these acts as examples of the crimes in
question. Thus, for example, the South African courts broadened the field of application of
theft by in certain situations relating to the theft of money deviating from the well-known rule
of common law that only corporeal, movable property can be stolen; they held that a person
can commit theft even though the object of the appropriation is merely an “abstract sum of
________________________
136 Sachs 1953 1 SA 392 (A) 399–400; Stassen 1965 4 SA 131 (T) 134; Claasen 1997 1 SACR 675 (C)
680f–g.
137 Hoctor, Milton and Cowling Introduction 1–42 ff.
138 See, however, the discussion infra par 12 of the judgment of the Constitutional Court in Masiya v Dir-
ector of Public Prosecutions 2007 2 SACR 435 (CC).
139 Augustine 1986 3 SA 294 (C) 302I–J; Mintoor 1996 1 SACR 514 (C) 517A–B (but contrast Ndebele
2012 1 SACR 245 (GSJ). The decisions in Sibiya 1955 4 SA 247 (A) (relating to theft) and Von Molendorff 1987 1 SA 135 (T) (relating to extortion) constitute two examples of the correct application of
this principle. In Sibiya’s case the Appellate Division held that because of doubt that existed over the
question of whether the mere temporary use of another’s property (furtum usus) constituted theft according to our common-law authorities, such conduct should not be regarded as amounting to theft. Schreiner
JA declared at 256: “There should if possible be a high degree of rigidity in the definition of crimes; the
more precise the definition the better.” Contrast, however, Ndebele supra.
INTRODUCTION
39
money” or “credit” (which in many cases amounts, technically speaking, to nothing more than
a claim against a bank).140
11 Extending the scope of existing crimes by analogy not permitted The ius strictum
principle implies further that a court is not authorised to extend a crime’s field of application
by means of analogy to the detriment of X. Otherwise a court would be free to extend the
definition or field of application of an existing crime by means of a wide interpretation of the
requirements for the crime. This rule applies just as much to statutory crimes as to commonlaw crimes.141 Analogy refers to a partial resemblance between two concepts; since the resemblance is partially only, it follows that in other respects the two concepts differ from one
another. Although it is not permissible to extend the description of punishable conduct by
means of analogy, in criminal law there is no objection to the extension of defences by analogy.142 The borderline between legitimate interpretation of a legal provision and an illegitimate
extension thereof (whether by analogy or otherwise) is fluid and not always easy to ascertain;
nevertheless one is here dealing with a valid and necessary borderline.143
Given its significance in the context of the principles relating to legality, it is necessary to
discuss the judgment of the Constitutional Court in Masiya v Director of Public Prosecutions,144 in the particular context of the legality principle as applied to common-law provisions.
12 The judgment in Masiya In Masiya the Constitutional Court extended the scope of the
common-law crime of rape to include not merely sexual penetration of a woman by a man’s
penis through her vagina, but also such penetration through her anus. This judgment was
delivered before the legislature enacted a new broader definition of rape. Before this judgment
was delivered, intercourse with a woman through her anus was punishable as indecent assault.
The judgment of the Constitutional Court thus amounts to the court extending the scope of the
(common-law) crime of rape to include a type of situation not previously included in its
definition, thereby broadening its field of operation. The extension sanctioned by the majority
of the court (per Nkabinde J) did not however extend the category of victims to males, but
rather sought to include non-consensual anal penetration in the definition of the common-law
crime.145 The basis for this extension, by developing the common law in terms of section 39(2)
of the Constitution, was both the need to give recognition and content to a woman’s right to
________________________
140 Infra XVIII A 15; Kotze 1965 1 SA 118 (A); Verwey 1968 4 SA 682 (A) 687. Another example of a case
141
142
143
144
145
in which a court was prepared to extend the field of application of a common-law crime is Burger 1975 2
SA 601 (C). In this case the court held that the crime of defeating or obstructing the administration of justice could be committed by making a false declaration to the police, despite the fact that no examples of
the offence being committed in this way are given in the common-law authorities.
Oberholzer 1941 OPD 48 60. A good example of a case in which the court refused to extend the area of
application of a criminal norm by means of analogy is Smith 1973 3 SA 945 (O). In this case X was
charged with having been in possession of indecent photographic material, in contravention of certain
provisions of Act 37 of 1967. However, it appeared that the pictures in his possession were photocopied
reproductions. The court refused to extend the provisions of the Act and X was acquitted.
Jescheck and Weigend 134–135; Schönke-Schröder n 31 ad s 1; Labuschagne 1988 SACJ 52 67. Thus,
the Appellate Division in Chretien 1981 1 SA 1097 (A) held that the defence of a lack of criminal capacity should not be limited to cases of mental illness and youth, but should also be extended to apply to certain cases of intoxication. There can therefore be no objection against the extension by way of analogy of
the scope of a ground of justification, since this is to X’s advantage – Mnanzana 1966 3 SA 38 (T).
Augustine 1986 3 SA 294 (C) 302I–393B; Von Molendorff 1987 1 SA 135 (T) 169H–I.
2007 2 SACR 435 (CC).
Masiya supra par 45.
40
SNYMAN’S CRIMINAL LAW
dignity, equality and freedom and security of the person,146 along with giving effect to the
strong societal aversion and revulsion of this type of conduct.147
Having concluded that it was appropriate to extend the common-law definition of rape in
this manner, Nkabinde J examined whether this definition could be retrospectively applied. It
was concluded that the common law should be developed prospectively only, and that the
retrospective development of the common-law crime of rape would offend against the constitutional legality principle.148 Nkabinde J held that though it may seem that the fact of the
unlawfulness of the accused’s conduct (under the head of common-law indecent assault)
meant that the prohibition against retrospective application of the criminal law149 was not
implicated, that this was contrary to the jurisprudence of the Constitutional Court.150 Citing the
strong view of legality adopted in Veldman,151 Nkabinde J concluded that it would be unfair,152 and indeed unconstitutional,153 to convict the accused of an offence in circumstances
where the conduct in question did not constitute an offence at the time of commission, in casu
rape.
The coming into force of the Criminal Law (Sexual Offences and Related Matters) Amendment Act,154 which incorporates a gender-neutral offence of rape, shortly after Masiya was
decided, rendered the substantive decision on the common-law crime of rape academic.
However, the Constitutional Court decision in Masiya remains very significant from the
perspective of the application of the legality doctrine, and in particular the approach that the
court should adopt if faced with the question of whether to develop the common law so as to
accord with the Constitution. Unlike the crime of sodomy, the common-law definition of rape
was held not to be unconstitutional “precisely because it could be adapted so as not to fall
short of the spirit, purport and objects of the Bill of Rights”.155 As Kemp points out, the
approach of the court is incremental and characterised by caution, and in exercising the constitutional imperative to develop the common law the court in Masiya has not offered the principle of legality on the altar of wide-ranging judicial law-making.156
Nkabinde J makes reference to some of the jurisprudence of the European Court of Human
Rights in Masiya, mentioning the “central tenet” of foreseeability.157 The application of this
principle as a human right, in the context of a right to foreseeable criminalisation, is instructive. The undetermined nature of human rights means that they are required to be conceptualised in ad hoc cases, and are further characterised by a tendency towards generalisation.158
Peristeridou notes further that the interpretation of human rights is influenced by their interconnections; that there is a relational dimension to human rights.159 What this means for the
________________________
See par 27.
Par 44.
Par 51.
S 35(3)(l) of the Constitution; see supra I F 8.
Masiya supra par 54.
Veldman v DPP 2006 2 SACR 319 (CC).
Par 56.
Par 57.
Act 32 of 2007, see infra XI.
Radebe 2019 2 SACR 381 (GP) par 42.
Kemp in Du Plessis and Lubbe 376 386–388. This approach is demonstrated in Mshumpa 2008 1 SACR
126 (E) 150–151, where the court refused to extend the definition of murder to include the unborn.
157 Masiya supra par 52.
158 Claes in Claes, Foque and Peters 33–34. Peristeridou 100 notes that the human rights are subjected to a
balancing exercise, and can be respected or violated to varying degrees. Moreover, in respect to the question of generalisation, since fundamental rights underpin the whole criminal justice system, their interpretation and application in concrete cases must allow for them to be applied in other cases as well. In
addition, human rights are understood as claims against the state, which have priority over other obligations.
159 Peristeridou 100.
146
147
148
149
150
151
152
153
154
155
156
INTRODUCTION
41
legality principle is that the right to foreseeable criminalisation is interpreted in the context of
the other rights in casu, that foreseeable criminalisation “depends on whether individuals can
draw from the rules reasonable expectations with regard to each other”.160 Hence the relational
dimension of the legality principle presupposes that “criminal norms are not only a barrier to
state arbitrariness, but also protect individual autonomy in its positive sense, i.e. they enforce
standards of interpersonal activity”.161
In drawing the distinction between whether the court is engaging in judicial law-making or
whether it is simply clarifying or restating the law, the notion of foreseeability, in the sense of
whether an interpretation could be objectively foreseeable, ought to be determinative.162 In this
regard, foreseeability need not be absolute but exists “to a degree that is reasonable in the
circumstances, the consequences which a given action may entail”.163 This criterion could
explain the difference in the result of the Masiya case, where X was acquitted of rape and only
convicted of indecent assault,164 and the Ndebele case, where the court adopted an apparently
novel approach165 in convicting X of theft of electricity.166
While the Masiya judgment is instructive in so far as it explains the powers of courts to
extend common-law crimes in relation to statutory provisions, these have to be interpreted in
line with the established principles.167 The court will have to consider whether the language of
the legislature is clear and unambiguous, along with the context in which the legislation was
drafted and eventually promulgated, as well as the background circumstances.168 The court
must not venture into the arena of the legislature by creating criminal offences merely because
it might be of the view that a casus omissus has occurred.169
13 The principle of legality in punishment In the discussion so far, attention has been
paid to the application of the principle of legality to the creation, validity, formulation and
interpretation of crimes or definitions of crimes. When dealing with the imposition of punishment, the ius acceptum, ius praevium, ius certum and ius strictum principles apply equally.
The application of the principle of legality to punishment (as opposed to the existence of the
crime itself) is often expressed by the maxim nulla poena sine lege – no penalty without a
statutory provision or legal rule.
The application of the ius acceptum principle to punishment is as follows: in the same way
as a court cannot find anyone guilty of a crime unless his conduct is recognised by statutory or
________________________
Claes in Claes, Foque and Peters 35; Peristeridou 100.
Peristeridou 100.
Juratowitch 130.
ECtHR Sunday Times v United Kingdom, App. 6538/74, 26 April 1979, par 49.
Masiya supra par 56: “In this case, it can hardly be said that Mr Masiya was indeed aware, foresaw or
ought reasonably to have foreseen that his act might constitute rape as the magistrate appears to suggest.”
165 Theft of an intangible like electricity runs contrary to the rule that the crime of theft is confined to
corporeal objects (infra XVIII A 8), and previous case authority specifically excluding the possibility of
theft of electricity in Mintoor 1996 1 SACR 514 (C).
166 Ndebele 2012 1 SACR 245 (GSJ).
167 Frederiksen supra par 16, which cites (at par 13) the following principles relating to statutory interpretation from Cool Ideas 1186 CC v Hubbard and Another 2014 4 SA 474 (CC) par 28: “A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical
meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this
general principle, namely:
160
161
162
163
164
(a)
(b)
(c)
that statutory provisions should always be interpreted purposively;
the relevant statutory provision must be properly contextualised;
all statutes must be construed consistently with the Constitution, that is, where reasonably possible,
legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to the purposive approach referred to in (a)”.
168 Frederiksen supra par 16.
169 Ibid.
42
SNYMAN’S CRIMINAL LAW
common law as a crime, it cannot impose a punishment unless the punishment, in respect of
both its nature and extent, is recognised or prescribed by statutory or common law.170 In the
case of statutory crimes, the maximum penalty which can be imposed for each crime is usually
specifically set out. If the legislature creates a crime, it should, in order to best comply with
the principle of legality, also set out the punishment for the crime. This limits the possibility of
an unusual, cruel or arbitrary punishment being imposed. If the legislature creates an offence
but omits to specify the punishment, then the punishment is in the discretion of the court.171
The application of the ius praevium principle to punishment is as follows: if the punishment
to be imposed for a certain crime is increased, it must not be applied to the detriment of an
accused who committed the crime before the punishment was increased. Section 35(3)(n) of
the Constitution provides that the right to a fair trial includes the right to the benefit of the
least severe of the prescribed punishments if the prescribed punishment for the offence has
been changed between the time that the offence was committed and the time of sentencing.172
The rule against the retrospective operation of sentences does not apply to cases in which the
legislature reduces the punishment. The reason for this exception is that provisions in an Act
which benefit the citizen do operate retrospectively.173 The application of the ius certum principle to punishment is that the legislature should not express itself vaguely or unclearly when
creating and describing punishment.
The application of the ius strictum principle to punishment is that where a provision in an
Act which creates and prescribes a punishment is ambiguous, the court must interpret the provision strictly. Furthermore, a court may not extend by analogy the provision which prescribes
the punishment to cases which the legislature could not have had in mind.
________________________
170
171
172
173
Malgas 2001 1 SACR 469 (SCA) 472g–h; Dodo 2001 1 SACR 594 (CC) 604e–f.
Hoctor, Milton and Cowling Introduction 1–20.
Senyolo 2010 2 SACR 571 (GSJ).
Sillas 1959 4 SA 305 (A) 308; Milton and Cowling Introduction 1–28.
CHAPTER
II
CONDUCT
A CONDUCT (ACT OR OMISSION)
1 “Conduct”, “act”, “omission” The first general requirement for criminal liability is that
there must be conduct on the part of X. By “conduct” is understood an act or an omission.
“Act” is sometimes referred to as “positive conduct”, “commission” or commissio and an
“omission” as “negative conduct”, “failure to act” or omissio.
From a technically correct point of view the term “act” does not include an “omission”.
“Act” is rather the exact opposite of an “omission”. There is no general concept which embraces them both. The two differ from each other as day and night, because to do something
and not to do something are exact opposites. The word “conduct” may refer to both of them,
but the use of the word “conduct” is merely a formal, linguistic device of referring to both of
them simultaneously. On a material level the differences remain.1 This is confirmed by the fact
that the legislature, when referring to this first element of criminal liability, regularly speaks of
“act or omission” or uses an expression such as “somebody who commits an act or fails to
commit an act”.2
To be technically correct one would, therefore, always have to speak of “an act or an omission” when referring to this first basic element of liability. Since this expression is somewhat
strained, and since the punishment of omissions is more the exception than the rule, writers tend
to use the word “act” in a wide sense as referring to both an act and an omission – in other
words, as a synonym for “conduct”. Normally this use of the word “act” in a non-technical,
non-literal sense does not lead to confusion. From the context of the statement the reader
would normally be able to make out whether the writer uses the word “act” loosely as a term
referring to both an act of omission, or whether it is used in the strict, technical sense of
“active conduct”.
________________________
1
In German criminal-law theory, which strives toward a description of the principles of criminal liability
which is as systematic as possible, there has for decades been a heated debate on whether it is possible to
combine an act and omission in one general concept, and if so, what this overarching concept is. Eventually most jurists agreed that such a general concept does not exist. As a result the discussion of the general
principles of liability in German textbooks is divided into two strictly separate parts, one dealing with liability for acts and the other with liability for omissions. The advantage of such a procedure is that the general principles are set out very logically and systematically, but the disadvantage of this method is the
degree of repetition of the discussion of the same concepts. To avoid this repetition, in this book the general principles will be described as they apply to both active and passive conduct. For this reason the word
“conduct” will often be used when referring to both an act and an omission.
2 Cf the wording of s 78(1) of the Criminal Procedure Act 51 of 1977.
43
44
SNYMAN’S CRIMINAL LAW
2 “Act” means “the type of act described in the definitional elements” Criminal law
does not prohibit a mere act in abstracto. Put differently, there is no rule of law declaring
“You may not act”. At every conscious moment of a person’s existence she performs some act
or other, such as walking, opening a door, or simply sitting and staring out of the window. It
stands to reason that “act” as the word is used in criminal law does not refer to the “events”
just mentioned; it refers only to the type of act mentioned in the definition of the crime with
which X is charged, and more specifically, the type of act set out in the definitional elements
of the relevant crime. The law does not concern itself with any other possible “act” committed
by X (ie, an act other than the one mentioned in the definitional elements). Thus if X is charged with rape, the act required is sexual penetration; if she is charged with arson, the act required is setting fire to a certain type of structure.
3 The act functions as both the basis of and as a limitation of liability3 The concept of
an act performs two important functions in the construction of criminal liability: first, it forms
the basis of liability and, secondly, it serves to limit the scope of liability.
We first consider the first-mentioned function of an act. Because the act is the basic element
in the construction of a system of criminal liability, all the other elements or requirements for
liability are attributes or qualifications of the act. It is pointless to investigate whether there
has been compliance with the requirement of unlawfulness if it is not yet clear whether there
was an act which is compatible with the definitional elements, since only such an act can be
unlawful. Again, the discussion of culpability below will reveal that the presence of culpability can be determined only once it is clear that there has been an act that complies with the
definitional elements and that is also unlawful. The act can therefore be seen as the base of a
pyramid which may be sketched as follows:
Culpability
(mens rea)
Unlawfulness
Compliance with definitional elements
Act
The second function of the requirement of an act is to determine the outer limits of criminal
liability and in this way to limit its scope. The act must be described in such a way that it
excludes from the field of investigation conduct or events which are irrelevant for the purposes of criminal law. Such conduct or events are:
(a) thoughts that have not yet been transformed into an act or conduct;
(b) non-human conduct, such as that of an animal; and
(c) involuntary muscular movements, such as those of a somnambulist.
Each of these will be discussed below.
4 Thoughts not punishable Merely thinking of doing something, or even a decision to do
it, is not punishable.4 Before there can be any question of criminal liability, X must have
________________________
3
On this aspect of the requirement of an act, see Jescheck and Weigend 219–220; Roxin ch 8 pars 4, 12, 58–
73.
CONDUCT
45
started converting her thoughts into actions. This does not mean that only the completed
crime, with all the harm already done, is punishable. As will be seen,5 an attempt to commit a
crime is also punishable, but even then some act is required which goes beyond a mere idea or
a decision to do something. Even uttering words may be sufficient to constitute a crime, as is
evident from the fact that incitement and conspiracy are punishable.6
5 Act must be a human act The act must be a human act; in other words, the subject of the
act must be a human being. In ancient societies and during the Middle Ages, animals and even
inanimate objects, such as beams which fell on people’s heads, were sometimes “tried” and
“punished”,7 but this could not happen today in the South African or any other modern legal
system. A human being, however, can be punished if she commits a crime through the instrumentality of an animal, for example if she incites her dog to bite someone.8 In this type of
situation the law regards the animal merely as a means employed by X to achieve her criminal
purpose, and the basis of X’s liability is the same as the basis on which she will be liable if she
uses an instrument such as a stick or a firearm. The rule that the act must be committed by a
human being is subject to the exception that a juristic person or corporate body such as a
company can sometimes also be punished. Because of the extent of this subject, the criminal
liability of a corporate body will be discussed separately later.9
6 Act not necessarily a muscular contraction It is incorrect to interpret the concept of an
“act” as necessarily implying a bodily movement or muscular contraction. To do this is to
adopt what is sometimes called the “naturalistic” theory of an act, according to which the
concept of an act is derived purely from the natural sciences. This is an obsolete view, dating
from the nineteenth century and strongly influenced by the positivistic legal tradition then in
vogue.
The obvious flaw in this theory is that it is unable to explain why omissions are also punishable. An omission is, after all, a form of conduct in which there is, by definition, no muscular
contraction or physical movement. “Act” must therefore be understood, not in terms of the
natural sciences, but as a technical term, peculiar to the law, which includes in its meaning
both a commission and an omission. One can, of course, sidestep the whole question as to how
an “act” can include also an omission, by simply avoiding the term “act” and using in its stead
either the expression “act or omission” or “conduct”.
As will become clear later in the discussion in this book, X’s conduct may qualify as an act
for the purposes of criminal liability even though it is not her own physical movements that
directly perform the forbidden act, but if she uses another person as an instrument through
which she performs such an act.
7 “Act” not limited to intentional conduct It is wrong to limit the concept of an act to
conduct that is willed – that is, intentional conduct. Even an unintentional act may amount to
an “act” for the purposes of criminal law, as where the act takes place negligently.
If X is charged with a crime requiring intention (as opposed to negligence), X’s will or intention is obviously of great importance when determining whether X is guilty of having
committed the crime, but as a rule this intention does not form part of the requirement of an
act; it becomes an issue only in investigating the later elements or requirements for liability,
and more specifically the culpability element.
________________________
4
5
6
7
8
9
D 48 19 18: cogitationis poenam nemo patitur; D 50 16 225; Huber HR 6 1 4 (“want van de gedachten is
men alleen aan God reekenschap schuldig”); Matthaeus Prol 1 5; Moorman Inl 1 13; Van der Linden 2 1 3
2; Milne and Erleigh (7) 1951 1 SA 791 (A) 822; Van der Westhuizen 1951 2 SA 338 (C) 341.
Infra VIII B.
Infra VIII C and D.
See Exodus 21: 28.
Thody 1971 2 SA 213 (N) and cf Fernandez 1966 2 SA 259 (A).
Infra VI.
46
SNYMAN’S CRIMINAL LAW
8 Act must be voluntary Only voluntary conduct is punishable.10 Conduct is voluntary if X
is capable of subjecting her bodily movements to her will or intellect. She must be capable of
making a decision about her conduct (act or omission) and to execute this decision. This
implies that she must be capable of preventing the prohibited act or result if she applies her
mind to the matter. It is not required that X make a rational or well-considered decision; even
an infant or mentally ill person can act, even though such a person cannot make a rational
decision. If the conduct cannot be controlled by the will, it is involuntary, as, for example,
when a sleep-walker tramples on somebody, or an epileptic moves her hand while having an
epileptic fit and hits someone’s face. If X’s conduct is involuntary, it means that X is not the
“author” or creator of the act or omission; it means that it is not X who has acted, but rather
that the event or occurrence is something which happened to X.
9 Absolute force The voluntariness of an act is excluded, first, by absolute force (vis absoluta).11 In this form of force X’s ability to subject her bodily movements to her will or intellect
is excluded. The following is an example of absolute force: X is slicing an orange with her
pocket-knife. Z, who is much bigger and stronger than X, grabs X’s hand which holds the
knife and presses it, with the blade pointing downward, into Y’s chest. Y dies as a result of the
knife-wound. X with her inferior physique would have been unable to prevent the incident,
even if she had tried. X performed no act. It was Z who performed the act.
This situation must be distinguished from relative force (vis compulsiva). In this type of
force X does have the ability of subjecting her bodily movements to her will or intellect, but is
confronted with the prospect of suffering some harm or wrong if she chooses not to commit
it.12 The following is an example of relative force: Z orders X to shoot and kill Y, and threatens to kill X herself if she (X) refuses to comply with the order. The circumstances are such
that X cannot escape the predicament in which she finds herself. If X then shoots Y, there is
indeed an act, but X may escape liability on the ground that her conduct is justified or excused
by necessity.13 In this form of coercion X is influenced to act in a certain manner, but it still
remains possible for her to act in a manner in which she can avoid the injurious conduct.
10 Automatism A more important respect in which the law assumes that there is no act
because what is done, is done involuntarily, is where a person behaves in a mechanical
fashion. Examples of mechanical behaviour are reflex movements such as heart palpitations
or a sneezing fit, somnambulism,14 muscular movements such as an arm movement while a
person is asleep or unconscious15 or having a nightmare, an epileptic fit,16 and the so-called
“black-out”.17 Mere amnesia after the act, that is, the inability to remember what happened at
the critical moment is not to be equated to automatism, because the question is not what X can
remember of the events, but whether she acted voluntarily at the critical moment.18
________________________
10
11
12
13
14
15
16
17
18
Goliath 1972 3 SA 1 (A) 29; Cunningham 1996 1 SACR 631 (A) 635–636; Henry 1999 1 SACR 13 (SCA)
19i. Neither unconscious human conduct, nor involuntary human movement (such as that flowing from vis
absoluta), is regarded as an act for the purposes of customary criminal law – Myburgh 7; Botha 11; Prinsloo 173.
Hercules 1954 3 SA 826 (A) 831G; Goliath supra 11, 29.
As in Goliath supra and Peterson 1980 1 SA 938 (A).
Infra IV C.
Van der Linden 2 1 6 4; Moorman Inl 2 24; Johnson 1969 1 SA 201 (A) 204.
Dhlamini 1955 1 SA 120 (T); Naidoo 1971 3 SA 605 (N) 607E.
Schoonwinkel 1953 3 SA 136 (C), but contrast Victor 1943 TPD 77.
Van Rensburg 1987 3 SA 35 (T) (automatism due to X’s suffering from hypoglycaemia); Viljoen 1992 1
SACR 601 (T). See also Stellmacher 1983 2 SA 181 (SWA) 185A–B. Although X was quite rightly acquitted in this case, the court erred in regarding his hypoglycaemia and/or epileptic state as a factor excluding criminal capacity. See 187A, 188B. On the defence of automatism in general, see Johnson supra
204–205; Trickett 1973 3 SA 526 (T); s 2.01(2) of the American Model Penal Code. On the question of
whether hypnosis can exclude voluntary conduct, see Hoctor 2009 Obiter 348.
Piccione 1967 2 SA 334 (N); Majola 2001 1 SACR 337 (N) 339–340; Humphreys 2013 2 SACR 1 (SCA)
pars 10–11. On the effect of amnesia on criminal liability generally, see Hoctor 2000 SACJ 273.
CONDUCT
47
These types of behaviour are often somewhat loosely referred to as cases of “automatism”,
since the muscular movements are more reminiscent of the mechanical behaviour of an automaton than of the responsible conduct of a human being whose bodily movements are
subject to the control of her will.19 It really does not matter much in what terms the conduct is
described; the question is simply whether it was voluntary, in other words, whether the person
concerned was capable of subjecting her bodily movements or her behaviour to the control of
her will.
11 Distinction between automatism due to involuntary conduct and unconscious behaviour attributable to mental illness A distinction must be drawn between automatism due to
involuntary conduct and unconscious behaviour attributable to mental illness. In the former type
of situation X, who is mentally sane, only momentarily behaves involuntarily because of, for
example, an epileptic fit, as explained above. In the latter type of situation X’s unconscious
conduct is attributable to a mental pathology, that is, mental illness (insanity).
The courts have referred to the former type of situation as “sane automatism” and to the
latter as “insane automatism”. This terminology can lead to confusion, in failing to indicate
that the defence known as “insane automatism” is in fact nothing other than the defence of
mental illness (insanity).20 It may be argued that in the interests of clarity it is better to avoid
using the expressions “sane automatism” and “insane automatism”, and to reserve the term
“automatism” to involuntary conduct not attributable to a mental disease. The Supreme Court
of Appeal has recently (on more than one occasion)21 avoided the terms “sane automatism”
and “insane automatism”, preferring to use the expression “automatism not attributable to
mental pathology” instead of “sane automatism”. (By “mental pathology” is meant “mental
illness”.) In Henry 22 the court also used the expression “psychogenic automatism” to refer to
“sane automatism” (ie, automatism excluding voluntary conduct). What in the past was referred to as “insane automatism” can better be described as “pathological loss of consciousness”.
Having made this point, it is nevertheless evident that the terms “sane automatism”23 and
“insane automatism”24 remain in use in our courts, as convenient terms of art.25 The crucial
difference to be drawn is between loss of consciousness due to mental illness and loss of consciousness due to involuntary conduct.
12 Practical importance of above distinction The difference between automatism due to
involuntary conduct and unconscious behaviour attributable to mental illness is of great practical importance, for two reasons:
1 The placing of the onus of proof depends upon the defence which X raises. In cases of
automatism due to involuntary conduct the onus is on the state to prove that the act was
voluntary,26 although the state is assisted by the natural inference that, in the absence of exceptional circumstances, sane persons who engage in conduct which would ordinarily give
rise to criminal liability do so consciously and voluntarily.27 In cases of unconscious
________________________
19
20
21
22
23
24
25
26
27
Humphreys supra par 8.
In Kok 2001 2 SACR 106 (SCA) the Supreme Court of Appeal emphasised at 110d–e that s 78(6) of the
Criminal Procedure Act 51 of 1977 contains no reference to “sane automatism”, and that the latter term is
not a psychiatric term, but merely a useful tag to describe automatism arising from some cause other than
mental illness.
Cunningham 1996 1 SACR 631 (A) 635–636; Henry 1999 1 SACR 13 (SCA) 19–20. Scott JA delivered
the judgment of the court in both these cases.
Henry 1999 1 SACR 13 (SCA) 20e–f.
See, eg, Eadie 2002 1 SACR 663 (SCA) passim; Van der Westhuizen 2011 2 SACR 26 (SCA) par 74.
See, eg, Majola 2001 1 SACR 337 (N) 339d–e; Shaw 2011 1 SACR 368 (ECG) 371b–c.
This reflects the practice in English law: Smith, Hogan and Ormerod 307; Ashworth/Horder 100 ff.
Henry 1999 1 SACR 13 (SCA) 19i–j; Humphreys 2013 2 SACR 1 (SCA) par 9
Cunningham supra 635j–636b; Henry supra 20a–c; Humphreys supra par 9.
48
2
SNYMAN’S CRIMINAL LAW
behaviour attributable to mental illness the defence is one of mental illness and the onus is
on X to prove that she suffered from mental illness.28
The order which the court must make if it upholds X’s defence, depends upon the defence
which X successfully raises. A successful defence of automatism due to involuntary conduct results in X’s leaving the court a free person. If X relies on unconscious behaviour
attributable to mental illness and her defence succeeds, she must be dealt with in accordance with the rules relating to the defence of mental illness: section 78(6) of the Criminal
Procedure Act provides that in such a case a court must find X not guilty but that the court
then has a discretion to order that X be detained in a psychiatric hospital, in which case X
does not leave the court as a free person.29
13 Proving automatism due to involuntary conduct The attitude of the court towards a
defence of automatism is usually one of great circumspection.30 An accused who has no other
defence is likely to resort to this one in a last attempt to try and escape the consequences of her
acts. Evidence of a mere loss of temper is insufficient to warrant an inference of automatic
behaviour. Even where “sane automatism” is pleaded and the onus is on the state, X must base
her defence on medical or other expert evidence which is sufficient to create a doubt as to
whether the action was voluntary.31
It may sometimes be difficult to decide whether X’s unconscious or “automatic” behaviour
stems from mental illness or not. Expert evidence of a psychiatric nature will be of much
assistance to the court in pointing to factors which may be consistent, or inconsistent, as the
case may be, with involuntary conduct which is non-pathological (ie, unrelated to a mental
illness). Such evidence may, for example, relate to such matters as the nature of the emotional
stimulus which allegedly served as a trigger mechanism for the condition.32
The mere subconscious repression of an unacceptable memory (sometimes described as
“psychogenic amnesia”) does not mean that X in fact acted involuntarily.33 It is well known in
psychology that if a person experiences a very traumatic event, recalling the event in the mind
may be so unpleasant that the person’s subconscious “blocks”, as it were, subsequent recollection of the event. This then results in such person being subsequently unable to recollect what
happened. This inability to remember is not the same as the inability to subject a person’s
bodily movements to her will or intellect. It is the latter inability which is the crux of the test
to determine whether the defence of automatism not attributable to mental illness should
succeed or not. What a court must determine when X relies on the defence of such automatism
is therefore not X’s ability to remember what happened when the alleged crime was committed, but whether at the crucial moment she had the ability to subject her bodily movements to
her will or intellect.34
To summarise, in order for X to successfully rely on automatism, the following three aspects need to be in place. First, it is necessary for her to establish an evidential framework (or
factual foundation) underpinning the basis of her defence. Secondly, the evidence should
reveal a trigger mechanism which could alter X’s previously voluntary conduct into involuntary or automatic conduct. Thirdly, X should have complete and true amnesia for the period of
the involuntary or automatic conduct. Failure to provide such an evidential framework for the
________________________
28 Infra V B (iii) 9.
29 Infra V B (iii) 10.
30 Potgieter 1994 1 SACR 61 (A) 72–74; Henry 1999 1 SACR 13 (SCA) 20c; Humphreys supra par 10.
31 Cunningham 1996 1 SACR 631 (A) 635–636; Henry supra 20; Humphreys supra par 10. On the role of the
expert witness, see RM 2018 1 SACR 357 (GP) par 160. Where there is evidence of premeditation, this
militates against a finding of automatism – RM par 166.
32 Henry supra 20–21.
33 Ibid 20g–i.
34 Cunningham supra 639b.
CONDUCT
49
defence,35 or the lack of a condition triggering involuntary conduct,36 or where there is less
than full amnesia,37 will result in the defence of automatism not being successfully pleaded.
14 Antecedent liability The following qualification of the rule that muscular or bodily
movements performed in a condition of automatism do not result in criminal liability should be
noted: if X, knowing that she suffers epileptic fits or that, because of some illness or infirmity
she may suffer a “black-out”, nevertheless proceeds to drive a motor car, hoping that she will not
suffer a fit or “black-out” while she is behind the steering wheel, but does, she cannot rely on the
defence of automatism. In these circumstances she can be held criminally liable for certain
crimes which require culpability in the form of negligence, such as negligent driving or culpable
homicide. Her voluntary act is performed when she starts to drive the car while still conscious.38
In this way she sets in motion a causal chain of events which culminates in the harmful and
unlawful result. At the moment she commenced driving the car she was in a position to choose
not to do so. This situation is sometimes referred to as “antecedent liability”.
B OMISSIONS
1 Introduction It is not only a positive act which may lead to criminal liability; an omission
to act may also do so. In the first instance one has to do with active conduct or a commissio,
and in the second with failure to act or omissio. The relationship between the concepts “act”,
“omission” and “conduct” has already been discussed above.39
2 Prohibitive and imperative norms The distinction between commissiones and omissiones relates to the division of the norms of criminal law into two groups, namely prohibitive
and imperative norms. Prohibitive norms (“Don’t do that!”) prohibit persons from performing
certain acts. Imperative norms (“Do that!”), on the other hand, command persons to engage in
certain active conduct; they therefore prohibit persons from omitting to act positively.
The vast majority of criminal-law norms are prohibitive norms. Only in exceptional cases
does the law command a person to engage in active conduct. The reason for this is, firstly, that
as far as possible, the law does not concern itself with people who simply do nothing; secondly, that the law does not impose a general obligation upon people at all times to race to the
rescue of others and to protect them from harm;40 and thirdly, that imperative norms constitute
a greater infringement upon a person’s freedom than prohibitive norms, since imperative
norms place a duty upon her in certain circumstances to engage in active conduct whereas
prohibitive norms merely exclude certain possible forms of conduct from the otherwise
unlimited scope of conduct in which she is allowed to engage.
Imperative norms can only be infringed through an omission. Prohibitive norms, on the
other hand, can be infringed through either active conduct (commissio) or an omission (omissio). For example, the prohibitive norm which reads “you may not kill” may be infringed
through either an act or an omission. An example of the infringement of this norm by means
of an omission is where a mother causes her baby to die by simply omitting to feed it.
3 Legal duty to act positively An omission is punishable only if there is a legal duty upon
somebody to perform a certain type of active conduct. A moral duty is not necessarily the
same as a legal duty. Therefore, for the purposes of the law “an omission” does not mean “to
________________________
35
36
37
38
Cunningham supra 638j–639a; Henry supra 23–24; RM supra pars 164–168.
Cunningham supra 637e–h; Henry supra 21–22; RM supra par 164.
Cunningham supra 638d; Henry supra 20g–i; RM supra par 164.
Shevill 1964 4 SA 51 (RA) (driver of motor car fell asleep); Trickett 1973 3 SA 526 (T) 532; Grobler
1974 2 SA 663 (T) (crane operator fell asleep); Van Rensburg 1987 3 SA 35 (T) 39C–D.
39 Supra II A 1. In customary criminal law, punishable conduct may take the form of a positive act or an
omission – Prinsloo 173; Botha 11.
40 Burchell Huldigingsbundel vir CR Snyman 10–13.
50
SNYMAN’S CRIMINAL LAW
do nothing” but “to omit to engage in active conduct in circumstances in which there is a legal
duty to act positively”. Only then can X’s conduct (ie, her omission) be said to accord with the
definitional elements of the relevant crime.
If the legal duty is not created expressly (eg, in legislation) the rule is that there is a legal
duty on X to act positively if the legal convictions of the community demand that there be
such a duty.41 To ascertain what the legal convictions of the community are, the values enshrined in the Bill of Rights in the Constitution must be taken into consideration.42
4 Legal duty: particular situations It is customary, in discussions about the question of
when an omission leads to criminal liability, to enumerate a number of situations in which
there is a legal duty on X to act positively.43 Such a list will also be supplied below. In the first
three instances mentioned below the legal duty has been created expressly. In these situations
it is not necessary to consider the legal convictions of society in order to ascertain whether or
not there is a legal duty. However, the legal convictions of society play an important role in
the instances mentioned thereafter.
There is not a closed list of situations in which a legal duty exists.44 Most situations described in the list below should rather be viewed as instances encountered relatively often in
practice and which have crystallised into easily recognisable applications of the general rule,
mentioned above, that there is a legal duty to act positively if the legal convictions of the
community require that there be such a duty. The situations enumerated in this list cannot be
separated into watertight compartments; they may overlap.
(1) A statute may place a duty on somebody to act positively,45 for example, to complete an
annual income-tax form, or not to leave the scene of a car accident but to render assistance
to the injured and report the accident to the police.46
(2) A legal duty may arise by virtue of the provisions of the common law. According to the
provisions of the common law dealing with the crime of high treason, a duty is imposed
on every person who owes allegiance to the state and who discovers that an act of high
treason is being committed or planned, to disclose this fact to the police as soon as possible. The mere (intentional) omission to do this is equivalent to an act of high treason.47
(3) A legal duty may arise by virtue of an order of court, as in the following example: husband X and his wife Y are granted a divorce, and the court which grants the divorce orders
X to pay maintenance to Y in order to support her and the children born of the marriage. If
X omits to pay the maintenance, he may be convicted of the crime of contempt of court.
________________________
41
42
43
44
45
46
47
Minister van Polisie v Ewels 1975 3 SA 590 (A) 597A–B; Mahlangu 1995 2 SACR 425 (T) 435, especially 435j–436a; Williams 1998 2 SACR 191 (SCA) 194a–b. (Contrast, however, Minister of Law and Order
v Kadir 1995 1 SA 303 (A).)
Carmichele v Minister of Safety and Security 2002 1 SACR 79 (CC).
Van den Heever and Labuschagne 1996 Obiter 316–318 highlight three situations where liability for an
omission could follow in customary criminal law: where damage has been caused by animals (for which
X is responsible); where damage has been caused by fire; and where disrespect or disobedience is shown
towards the ruler. Furthermore, the failure to stop a fight is regarded as a crime in respect of the Tswana
(Myburgh 107) and in QwaQwa (Botha 58).
Thus the courts can recognise the development of new legal duties. For a recent example of where the
court did not recognise the establishment of a legal duty, see Cloete 2011 ZASCA 02 par 24. In this case
X’s failure to assist the deceased, whom he had apprehended as a suspected participant in an attempted
vehicle theft, and who was subjected to a subsequent attack by a group of men, was held not to be required in terms of a legal duty. X’s defence was that he was too tired to aid the deceased and that he realised that his intervention would have been to no avail.
Burchell Huldigingsbundel vir CR Snyman 15 ff.
S 61 of the National Road Traffic Act 93 of 1996.
Banda 1990 3 SA 466 (B) 512A–B; infra IX A 6(b).
CONDUCT
51
(4) A duty may arise from agreement. In Pitwood,48 an English case, the facts were that X and
a railway concern had agreed that, for remuneration, X would close a gate every time a
train went over a crossing. On one occasion he omitted to do so and in this way caused an
accident for which he was held liable.
(5) A duty may arise where a person accepts responsibility for the control of a dangerous or a
potentially dangerous object, and then fails to control it properly. In Fernandez,49 for example, X kept a baboon and failed to repair its cage properly, with the result that the animal escaped and bit a child, who later died. X was convicted of culpable homicide.50
(6) A duty may arise where a person stands in a protective relationship towards somebody
else. For example, a parent or guardian has a duty to feed a child.51 A protective relationship may also exist where somebody accepts responsibility for the safety of other people,
such as where X is the leader of a mountain-climbing expedition, or someone looking after a baby, or a life-saver at a swimming pool or beach.
(7) A duty may arise from a previous positive act, as where X lights a fire in an area where
there is dry grass, and then walks away without putting out the fire to prevent it from
spreading. This type of case is sometimes referred to as an omissio per commissionem,
since the omission follows upon a commission or positive act which has created a duty to
act positively.52
(8) A duty may sometimes arise by virtue of the fact that a person is the incumbent of a
certain office, such as a medical practitioner or a police official. In Minister van Polisie v
Ewels53 it was held that a policeman on duty who witnesses an assault has a duty to come
to the assistance of the person being assaulted.
5 The requirement that omissions must be voluntary and the defence of impossibility The defence of impossibility functions to justify failure to comply with a positive legal
obligation. Like active conduct, X’s omission must be voluntary in order to result in criminal
liability. Only then can the omission lead to criminal liability. An omission is voluntary if it is
physically possible for X to perform the positive act. Where the cause of the omission is
impossibility of action arising out of a situation akin to vis absoluta, that is, where X’s conduct has been rendered involuntary by force of external circumstances, then it would indeed be
correct to say that it was impossible for X to comply with the legal obligation in question.
Acquittal on the basis of the lack of voluntary conduct must follow, as it would in the vis
absoluta scenario.54 However, where X is not prevented from voluntary conduct, but it is
________________________
48 (1902) 19 TLR 37.
49 1966 2 SA 259 (A).
50 See also Russell 1967 3 SA 739 (N) (operating a crane under a live electric wire); Claasen 1979 4 SA 460
(ZS) 465 (X allowed a teenage girl, who did not have even a learner’s licence, to drive his large motor car
while he was talking to another passenger in it. As a result of his omission properly to exercise control
over the girl’s driving, he collided with a cyclist, killing him. X was convicted of culpable homicide).
51 Chenjere 1960 1 SA 473 (FC) 482; B 1994 2 SACR 237 (E) 248.
52 Russell supra 743H; Claasen supra 465; Van Aardt 2009 1 SACR 648 (SCA) pars 41–42.
53 1975 3 SA 590 (A). See also Govender 2004 2 SACR 389 (SCA) 389c–d; F v Minister of Safety and
Security 2009 2 SACR 639 (C) pars 47, 48. See also the applications of the Ewels case in Gaba 1981 3
SA 745 (O) and A 1991 2 SACR 257 (N) 272–273. In Mahlangu 1995 2 SACR 425 (T) 434–436 at least
one of the judges (JJ Strydom J) who heard the appeal, was (obiter – see 434g) of the opinion that there
was a legal duty on X, an employee at a filling station, to inform his employer Y, who was also the owner
of the filling station, that he (X) knew that the filling station would be robbed, and that X’s omission thus
to inform Y constituted a ground for convicting X of being an accomplice to the robbery which in fact ensued. JJ Strydom J based the existence of the legal duty upon the fact that X was an employee of Y
(whose filling station was robbed) and that there was accordingly a relation of trust between X and Y.
54 Some authors have classified impossibility as a defence exclusively pertaining to involuntary conduct. See
Goldstein 1966 THRHR 366 and the previous edition of this work at 60–62.
52
SNYMAN’S CRIMINAL LAW
impossible, objectively assessed, to comply with the legal obligation in question, the issue
relates to the question of lawfulness, based on the standard of the legal convictions of the
community.55 This latter defence is discussed below in the context of the justification grounds
negating unlawfulness.
C POSSESSION56
1 Introduction Several important statutory provisions criminalise the possession of certain
articles, such as unlicensed firearms,57 drugs58 or child pornography.59 There are certain
general rules governing the meaning of the concept of “possession”. These rules are set out in
the discussion which follows. The phenomenon of crimes prohibiting the possession of certain
articles is found only in crimes created by statute, not in common-law crimes.60
In crimes criminalising the possession of an article, “possession” refers to the particular act
or conduct required for a conviction. From a dogmatic point of view it is difficult to categorise
possession as either a positive act (commissio) or an omission (omissio). Possession may
sometimes be proven by a positive act on the part of X, as where she physically handles the
article by locking it up in a drawer. It may also be proven by an omission on the part of X, as
where she is informed that another person has placed a packet containing drugs in the drawer
of a desk over which she has control, and she simply acquiesces in the situation and does
nothing further to terminate her control over the packet. Possession could indeed be described
as a “state of affairs”.
2 The two elements of possession – corpus and animus Possession consists of two elements, namely a physical and a mental. The physical element is objective in nature. It is referred
to as corpus or detentio, and entails the physical control over the article. The second element
is subjective in nature. It is referred to as animus, and describes the intention with which X
exercises control over the article. Before X can be said to possess an article, both corpus and
animus must be present, and they must be present simultaneously. The contents of the animus
is not the same in each crime of possession; it may vary from crime to crime, depending on
how wide or narrow the legislature, when creating the crime, intends the concept of possession
to be in that particular crime.
3 The two forms of possession – possessio civilis and possessio naturalis The law differentiates between two forms of possession, namely possessio civilis and possessio naturalis.
The difference between these two forms of possession is not found in the physical element,
that is, the way in which X exercises control over the article, but in the animus element, that
is, the particular intention with which X exercises control over the article.
________________________
55
56
57
58
59
60
It was stated at 61 in the previous edition of this work that the defence of impossibility applies to involuntary conduct because the law cannot expect somebody who is lame to come to the aid of a drowning person, or somebody who is bound in chains to extinguish a fire. Whether X is able to act at all is an issue
relating to involuntariness, whereas what the law expects in a particular situation goes to lawfulness, and
so the discussion of impossibility in the previous edition has been relocated under IV I
See generally Snyman 2007 THRHR 540; 2008 THRHR 13; Hugo 1974 THRHR 148; 295; LAWSA 6 pars
391–399; Whiting 1971 SALJ 296; Middleton 1974 THRHR 183.
S 3 of the Firearms Control Act 60 of 2000; infra XIII D.
S 4 of the Drugs and Drugs Trafficking Act 140 of 1992; infra XIII C.
S 24B(1) of the Films and Publications Act 65 of 1996, held to be constitutional in De Reuck v DPP 2003
2 SACR 445 (CC).
The question may arise whether the common-law crime of receiving stolen goods knowing the goods to
be stolen is not perhaps an example of a common-law crime in which the possession of certain articles is
prohibited. It is submitted that the answer to this question is negative. The act prohibited in this crime is
not the possession of stolen goods, but the receiving of such goods. There is, however, a close link between the receiving and the possession of the goods. See infra XVIII D 6.
53
CONDUCT
Possession
possessio civilis
physical
element:
detentio or
control
+
OR
mental element: animus
domini
possessio naturalis
physical
element:
detentio or
control
+
mental element:
usually animus
detentionis
Possessio civilis is also known as “juridical possession” or “legal possession”. In this form of
possession X’s animus takes the form of animus domini, that is, the intention to exercise
control over the article as an owner or in the belief that she is the owner. Possessio civilis is
the narrow form of possession. If a statute creating a crime of possession is interpreted as
requiring possessio civilis, fewer people qualify as possessors compared to where the statute is
interpreted as creating possessio naturalis.
Possessio naturalis is known as “natural possession”. In this form of possession X exercises
control over the article without intending to possess it as owner. X knows that somebody else
(Y) is the owner, but nevertheless exercises control over the article on behalf of Y. This form
of possession is the wider form of possession. If a statute creating a crime of possession is
interpreted as requiring possessio naturalis, a wider circle of people qualify as possessors
compared to the situation where the statute is interpreted as creating possessio civilis.
In most statutory provisions criminalising the possession of a certain type of article, the
courts interpret the criminalising provision in such a way that the legislature is deemed to have
intended mere possessio naturalis to be punishable. The courts are generally unwilling to hold
that the legislature intended the prohibited possession to take the form of possessio civilis,
because such an interpretation would place a difficult onus of proof upon the prosecution: the
prosecution would then have to prove that X intended to exercise control over the article
animo domini (in the belief that she was the owner). Since X’s specific intention is known to
herself only, it is difficult for the prosecution to prove X’s specific intention to control the
article not on behalf of another, but in the belief that she herself was the owner.61
4 The physical element (corpus) The physical element of possession refers to X’s exercising of control over the article. Whether somebody has the control over an article is a question
of fact, depending on the circumstances of each case. Whether X exercises control over an
article depends on considerations such as the nature and size of the article, its purpose and
function, and generally the way in which one usually handles the particular type of article. If,
for example, X is the only person who has a key to a room or safe, she is usually regarded as
exercising control over the contents of the room or safe.62
________________________
61
62
R 1971 3 SA 798 (T) 802C–D; Solomon v Visser 1972 2 SA 327 (C) 339.
Shaw v Hendry 1927 CPD 357.
54
SNYMAN’S CRIMINAL LAW
In order to exercise control, X need not necessarily touch or handle the article herself. She
may exercise control through the instrumentality of somebody else, such as a servant or
employee.
X may further exercise control over an article despite the fact that the article is not in her
immediate presence. If, for example, X is the owner of a delivery vehicle driven by Y, her
employee, and X can communicate with Y by cell phone and in such a way give Y instructions regarding what to do with containers in the vehicle, X exercises control over the containers and the vehicle even though the vehicle is a thousand kilometres away from her.63
Two people who have opposing claims to an article cannot exercise control over it simultaneously.64 The one’s possession excludes that of the other. However, it is possible for two or
more people who do not have opposing claims to the article, to exercise control over the
article simultaneously and therefore to possess it jointly.65 Control over an article by two or
more people is possible if X exercises the control through an agent or servant Y, provided, of
course, that Y also has knowledge of the contents of the article.
5 The animus element
(a) General
In the definitions of the different crimes in which the possession of a certain type of article
is criminalised, “possession” does not always bear the same meaning. The different meanings
of “possession” in different crimes of possession do not flow from any differences in the
meaning of the corpus element (control over the article), but in different meanings attached to
the animus or mental element of the possession.
Different Latin expressions are used to describe the contents of the animus element. The use
of these expressions by courts and writers is not always consistent, and this sometimes leads to
unnecessary confusion concerning the meaning of possession in the particular crime. The
different Latin expressions used to describe the animus requirement will now be considered.
(b) Animus tenendi and animus detentionis
Animus tenendi means the intention to keep the article. Animus detentionis means the intention to exercise control (detentio) over it. These two expressions essentially mean the same
thing and may be used as synonyms. It is not possible to intend to hold the article without
intending to exercise control over it. This animus is always required to establish possession. It
is the minimum requirement for proof of the animus. Without the existence of this animus
there can be no possession.
This requirement in reality encompasses two sub-requirements. Firstly, X must have
knowledge of the existence of the article in her control. This implies knowledge by X of the
essential identity or character of the article. Secondly, X must be aware of the fact that she is
exercising control over it.66 Put more concisely, X must know, first, what it is that she has in
her control, and secondly, that she is exercising control over it.67 The courts sometimes refer
________________________
63
64
65
66
67
Singiswa 1981 4 SA 403 (C). In this case X was a prisoner on Robben Island, and was convicted of
possession of dagga, despite the fact that the dagga was far away from X in Gugulethu, a suburb of Cape
Town.
Singiswa supra 405F–G; Ndlovu 1982 2 SA 202 (T) 204F–G.
Masilo 1963 4 SA 918 (T) (X, the driver of a motor-car, picked up passenger Y, while knowing that Y
was in possession of dagga. The court held that both X and Y possessed the dagga); Mkize 1975 1 SA 517
(A) 523D–E; Hoosain 1987 3 SA 1 (A) 11A–B; Mayekiso 1990 2 SACR 38 (NC) 43a–b.
Moyage 1958 3 SA 400 (A) 409; Blauw 1972 3 SA 83 (C) 84D; Mofokeng 1973 2 SA 89 (O) 91E–F;
Skhosana 1973 1 SA 322 (O) 325A; Jacobs 1989 1 SA 652 (A) 656C, 659D–H; Whiting 1971 SALJ 296
297.
Mosoinyane 1998 1 SACR 583 (T) 592b.
CONDUCT
55
to this requirement by stating that there must be “witting possession”.68 If an article is placed
in the hands of somebody who is sleeping, the latter cannot be said to “possess” the article. If
Y places a prohibited article in the drawer of X’s desk while X is out of her office and accordingly unaware of the presence of the article in her desk drawer, X can similarly not be said to
exercise control over the article and thus to possess it.
In most of the crimes in which the legislature criminalises the possession of a certain type of
article, the legislature intends the animus required for a conviction to consist of animus tenendi
or animus detentionis, as explained above. The possession is then known as possessio naturalis, as opposed to possessio civilis.
(c) Animus domini
Animus domini means knowledge or belief by X that she is the owner (dominus) of the article. The legislature may create a crime of possession and intend the possession not to have the
wide meaning of possessio naturalis (where the animus consists of animus tenendi), but to
have the more restricted meaning of possessio civilis. In such a case the animus required for a
conviction is not merely an animus tenendi, but also an animus domini. X must then exercise
control over the article as an owner, or in the belief that she is the owner. It is then not sufficient for a conviction that X exercises control over the article on behalf of somebody else.
Merely to exercise control as an agent, servant, messenger or bailee, is then not sufficient. A
well-known example in the common law of a possessor who possesses with animus domini is
the bona fide possessor. She is somebody who is not the real owner, but who bona fide believes that she is the owner.
(d ) Animus tenendi with or without the intention to derive a benefit from the article
The animus required for possession is sometimes expressed as animus ex re commodum
acquirendi – that is, the intention to derive some benefit from the possession of the article.
Examples of such possessors are lessees, pledgees, persons who have an article on loan and
people who have the right of retention of the article.
A further possibility is that X may exercise control over the article without any motive to
derive a benefit, as where she takes care of the article at the owner’s request simply as a
favour, that is, from purely altruistic motives. X’s animus may then be described as animus
non sibi sed alteri possidendi – that is, the intention to possess the article not for one’s own
benefit, but for somebody else’s benefit.
People who possess an article with one of the two intentions described in the above two
paragraphs, do not possess animo domini, because they know that somebody else is the owner.
They have only the animus tenendi.69 It is submitted that the animi described in the above two
paragraphs should play no role in criminal law. The meaning of these animi should be restricted to private law. The difference between animus tenendi with intent to derive a benefit and
such animus without an intent to derive a benefit relates to X’s motive only, and X’s motive is,
as far as the determination of criminal liability is concerned, irrelevant.70
(e) Animus rem sibi habendi
Another expression sometimes used in legal literature is animus rem sibi habendi.71 This
expression means “the intention to keep the article for yourself ”. It is a confusing expression
because it may refer to either the intention of the possessor civilis or that of the possessor
________________________
68
69
70
71
Brick 1973 2 SA 571 (A) 580B–C; Cleminshaw 1981 3 SA 685 (C) 690D–E.
Ndwalane 1995 2 SACR 697 (A) 702c–d.
Infra V C 12.
R 1971 3 SA 798 (T) 801D–F; Brick 1973 2 SA 571 (A) 582H.
56
SNYMAN’S CRIMINAL LAW
naturalis. The possessor civilis always has this intention, but the thief, who knows that somebody else is the owner and therefore cannot have the animus domini, also has the animus rem
sibi habendi. In order to avoid confusion, this expression should not be used in criminal law.
( f ) Animus possidendi
The Latin expression most often used to describe the animus element of possession is animus possidendi. Literally it means only the “intention to possess”. This expression, or at least
its literal meaning, says nothing about the important question of what the contents of X’s
intention must be in order to lead to a conviction of possession.
An analysis of the use of this expression by both courts and writers reveals that courts and
writers do not always attach the same meaning to this often-used expression.
• Firstly, it is sometimes used merely as a synonym for the animus requirement in general.72
It is then nothing else than a neutral term referring to “the mental element of possession”.
• Secondly, it is sometimes used to refer to awareness by X that she is in possession of the
article – in other words, to “witting possession”.73
• Thirdly, it is sometimes used to refer to the animus tenendi (or, what is the same, the
animus detentionis) – that is, the intention to exercise control, irrespective of whether X is
aware or unaware of the fact that somebody else is the owner, and irrespective of whether
X’s motive is to benefit herself or another.74
• Fourthly, it is sometimes used as a synonym for animus domini.75
• Fifthly, it is sometimes used as a synonym for the intention to derive a benefit from the
possession of the article.76
The general impression one gets from an analysis of the use of this expression by the courts is
that it is merely employed as a synonym for the animus element in general. It is submitted
that, in order to avoid confusion, it is advisable to avoid the use of this expression as far as
possible. If one merely speaks of the “animus requirement” or the “mental element of possession”, one can avoid confusion.
(g) Joint possession
Just as more than one person may have the physical control of an article, more than one
person may also simultaneously have the mental element required for possession. More than
one person may, for example, simultaneously (illegally) possess a firearm (which is a crime
which does not require animus domini but only animus detentionis).77 If they have the common purpose to commit a robbery but only one of them has the detention of the firearm, the
mere fact that they have a common purpose to commit a robbery does not necessarily mean
that all of them possess that firearm. Such a deduction can only be made if the court finds that
the robber who had the detention intended to possess it not only for himself but also on behalf
of the other(s), and that the other(s) had the intention that the robber having the detention
should exercise the physical detention on their behalf. Such a finding cannot automatically be
made from the mere fact that the participants acted with a common purpose to rob, because
________________________
72
73
74
75
76
77
Nabo 1968 4 SA 699 (EC) 700F; Mbulawa 1969 1 SA 532 (EC) 535D; Cleminshaw 1981 3 SA 685 (C)
690D–E; Qunta 1984 3 SA 334 (C) 338A; Mello 1998 1 SACR 267 (T) 272c.
Gumbi 1927 TPD 660 662; Gentle 1983 3 SA 45 (N) 46H; Cleminshaw supra 690.
Kasamula 1945 TPD 252 356–357; Nabo 1968 4 SA 699 (EC) 700H; R 1971 3 SA 798 (T) 803F–G;
Qunta supra 338A.
Pule 1960 2 SA 668 (T) 669C; R supra 801A, 801C–E; Ndwalane 1995 2 SACR 697 (A) 702c.
Kasamula supra 257; Binns 1961 2 SA 104 (T) 107G.
Infra XIII D 2 (c).
CONDUCT
57
such common purpose may equally exist in a situation in which the robber having the detention of the firearm intends to possess it only for himself.78
(h) Animus element does not form part of culpability (mens rea)
In crimes criminalising the possession of certain types of articles, the animus element of
possession does not form part of the culpability requirement (mens rea) of the crime, but of
the wrongdoing (actus reus).79 Even if the crime is one that requires culpability in the form of
intention, the animus element of possession forms part of the description of the act required
for a conviction, and not of culpability. The fact that the animus invariably has a subjective
character does not mean that it therefore forms part of the culpability requirement, because it
is wrong to regard all subjective requirements for liability as necessarily incorporated into the
culpability requirement.80
In Jacobs,81 a case which dealt specifically with the unlawful possession of a certain article,
the Appeal Court expressly held that the animus element of possession does not form part of
culpability, but of the act. Van Heerden JA held that one cannot say that X possesses dagga
unless she knows that the article over which she is exercising control is in fact dagga. If X
thinks that the packet over which she is exercising control contains only tobacco, she cannot
be said to possess dagga, but only tobacco. This subjective knowledge of X therefore relates to
the act of possession, and not to culpability. Culpability is still required, and consists in X’s
awareness that she possesses the dagga unlawfully.82 The latter awareness is absent if X thinks
that the possession of that type of article is not prohibited by law,83 or if she thinks that her
conduct is covered by some ground of justification, such as coercion (necessity) or public
authority.
6 The unwilling receiver of a prohibited article Assume that one day X walks to her post
box, opens it, finds an envelope addressed to herself in it, opens the envelope, and discovers
that it contains photos of child pornography, the possession of which is a crime.84 X did not
order the photos from anyone. Some unknown person with a perverted sense of humour
simply sent them to her. Sometime thereafter the police visit her house and find the envelope
containing the photos on her dining-room table. Is she guilty of the unlawful possession of the
photos?
________________________
78
79
80
81
82
83
84
Nkosi 1998 1 SACR 284 (W); Motsema 2012 2 SACR 96 (SGJ); Mbuli 2003 1 SACR 97 (SCA); Kwanda
2013 1 SACR 137 (SCA); Makhubela 2017 2 SACR 665 (CC); Leshilo 2020 ZASCA 98. In Kwanda X
was the driver of a vehicle. Y sat next to him with an AK47 rifle. On a charge of unlawfully possessing a
firearm, the court held that, even assuming that X knew that Y possessed the AK47, he (X) was not guilty
of (jointly) possessing the firearm, because it was not proven that he intended to possess it jointly. It is difficult to agree with the court’s finding: it is difficult to believe that X, who drove the car in the knowledge
that Y possessed the firearm, did not in any way commit an act whereby he at the very least jointly exercised control of the firearm. For just criticism of this judgment, see Jordaan 2013 SACJ 93.
For an explanation of the meaning of wrongdoing and culpability, see supra I E 2–3; infra IV A, especially
IV A 11; V A, especially V A 2.
See the discussion infra V A 9–10.
1989 1 SA 652 (A) 656–661. It is noticeable that the Appeal Court in this case did not follow the previous
cases of Smith 1965 4 SA 166 (C), Job 1976 1 SA 207 (NC) 208; Qunta 1984 3 SA 334 (C) 337I, 338D
and Adams 1986 4 SA 882 (A) 891H–I, in which the courts held (incorrectly, it is submitted) that the
knowledge by X that the packet under her control contained a prohibited article, forms part, not of the animus element of possession, but of culpability. In Cameron 2005 2 SACR 179 (SCA) 183d the court likewise regarded mens rea as an element separate from the mental element of possession. See also Goldberg
v Director of Public Prosecutions, Western Cape 2014 2 SACR 57 (WCC) par 72, which adopts the same
approach.
Goldberg v Director of Public Prosecutions, Western Cape 2014 2 SACR 57 (WCC) par 72.
De Blom 1977 3 SA 513 (A); infra V C 23–24.
S 24B(1) of the Films and Publications Act 65 of 1996, held to be constitutional in De Reuck v DPP 2003
2 SACR 445 (CC).
58
SNYMAN’S CRIMINAL LAW
There are two reported decisions in which the facts were more or less similar to those set out
above. In R85 the police visited X’s house about one hour after he had received the packet in
the post. By that time he had not yet gotten rid of the photos, neither had he contacted the
police. The court held that he was not guilty of the unlawful possession of the photos, because
the relevant legislation required X to have the intent to exercise control over the article “for
his own purpose or benefit”. A perusal of the judgment as a whole reveals that what the court
actually intended to say is that the legislature required X to hold the articles animo domini, and
that X in this case did not have such an intention.86 In Brick87 a period of 24 hours expired
between the time X received the packet and the time the police discovered it in X’s house. The
Appeal Court held that X was guilty of the possession of the article. The court refused to
follow the argument in R’s case,88 holding it to be sufficient for a conviction that there was
“witting physical detention, custody or control”.89
It is submitted that cases such as these should not, as the courts in these cases did, be decided with reference to any type of animus which X must have, but with reference to the general requirement applicable to all acts and omissions, namely that only an act or an omission
which is voluntary can lead to a conviction. In factual situations such as these, the requirement
of voluntariness means that the conduct of possessing the article begins only when the time
during which X might reasonably be allowed to get rid of the article, or to inform the police
about it, has elapsed. Only thereafter can her act of possessing be described as voluntary. One
must distinguish between the coming into being of the situation in which X found herself, and
its continuation. In the former instance one cannot construe a voluntary act, but in the latter
one can.90 It is submitted that an application of this principle to the facts in the two cases discussed above leads to conclusions which are similar to those in fact reached by the two courts.
________________________
85
86
1971 3 SA 798 (T).
The court’s reasoning concerning the applicable law is open to criticism. The court’s conclusion about the
law applicable to the relevant crime is incompatible with the court’s own previous (correct) finding that
“it is immaterial for the purposes of statutory possession [by which the court must have intended to mean
possessio naturalis] whether the holder intends to control the prohibited article for his own benefit or on
behalf of another” (803A). It is also incompatible with the court’s own statement that in statutory crimes
prohibiting the possession of an article, only an animus tenendi is required. Quite apart from these points
of criticism, the court’s finding that X had to intend to exercise control “for his own purpose or benefit” is
ambiguous, as this expression may cover both animus domini and animus tenendi.
87 1973 2 SA 571 (A), followed in Hanekom 1979 2 SA 1130 (A) 1135H and Adams 1986 4 SA 882 (A)
891.
88 Supra.
89 580C–D.
90 Middleton 1974 THRHR 183 185–186; Whiting 1971 SALJ 296 300.
CHAPTER
III
THE DEFINITIONAL ELEMENTS
A COMPLIANCE WITH THE DEFINITIONAL ELEMENTS1
1 Meaning of definitional elements Once it is clear that there was an act or omission (conduct) on the part of X, the next step in the determination of criminal liability is to investigate
whether the conduct complied with the definitional elements of the crime with which X is
charged. In order to understand this principle, it is necessary, first, to explain the meaning of
the expression “definitional elements”.
By “definitional elements” is understood the concise description of the requirements set by
the law for liability for the specific type of crime with which X is charged, as opposed to other
crimes. By “requirements” in this context is meant not the general requirements applying to all
crimes (eg, voluntary conduct, unlawfulness and culpability), but the particular requirements
applying to a certain type of crime only.
The definitional elements contain the model or formula with the aid of which both an ordinary person and a court may know what particular requirements apply to a certain type of crime.
By implication it also indicates in which respects the particular crime with which one is dealing differs from other crimes. One may also explain the meaning of “definitional elements” as
follows: All legal provisions creating crimes may be reduced to the following simple formula:
“whoever does ‘A’, commits a crime”. In this formula ‘A’ represents the definitional elements
of the particular crime.
The ideal is that crimes should be defined in such a way, and that their definitional elements
should accordingly be such that the definition and its elements are compatible with what is
often called the “principle of fair labelling”.2 This principle entails that the definitional elements
should be a fair reflection of what kind of wrongdoing the law seeks to prohibit under a specific heading or crime. The definitional elements should be such that even lay people would
readily be able to know what type of conduct a specific crime seeks to punish.
________________________
1
2
See generally Snyman 1994 SALJ 65; Rabie 1986 SACC 225; Jescheck and Weigend 244 ff; SchönkeSchröder n 43 ff ad s 13; Maurach-Zipf chs 19–22; Roxin 278 ff; Fletcher 553–566; Sendor 1990 Wake
Forest LR 707, especially 720–725. The concept or element of liability being discussed here is known in
German as “Tatbestand”. It is submitted that “Tatbestand” is best translated as “the definitional elements”.
Fletcher 553–554 declares that “we lack a term (in English) corresponding to the German Tatbestand or
Spanish Tipo that expresses the inculpatory facet of criminal conduct”. Elsewhere Fletcher has proposed
the term “paradigm” as a translation of “Tatbestand” – see Eser in Eser and Fletcher 1 37 fn 32. This is an
excellent brief description of the contents of this requirement, but the term is unknown in South African
criminal-law terminology. Allen 311 speaks of “definitional element of the offence” – the same term used
in this book.
See Moshikaro 2018 SALJ 162.
59
60
SNYMAN’S CRIMINAL LAW
2 Fulfilment of definitional elements Strictly speaking, the element of liability under discussion here should not merely be called “the definitional elements”, but “the fulfilment (or
realisation) of the definitional elements”. For liability there must be not only an act on the part
of X, but this act must also constitute a fulfilment of the definitional elements. X’s act must be
in accordance with, or correspond to, the definitional elements.
3 The act and the fulfilment of definitional elements To require a fulfilment of the definitional elements goes further than merely requiring conduct. This is why it is incorrect to
regard the fulfilment of the definitional elements as forming part of the conduct requirement.
On the other hand, the concept “definitional elements” is wide enough to include X’s act or
conduct – for example sexual penetration, possession, the making of a declaration or the causing of a situation.
4 Contents of definitional elements Although the definitional elements always describe the
kind of act which is prohibited, they are not limited to a description of the type of act required.
After all, the law does not prohibit mere possession without more, but possession of particular, circumscribed articles (such as drugs or unlicensed firearms); neither does the law forbid
mere sexual penetration without more but, for example, sexual penetration between people
who, on account of consanguinity, may not marry each other (incest); nor does the law forbid
the mere making of a declaration without more, but the making of a declaration which is false
and made under oath in the course of a judicial process (perjury).
Thus the definitional elements refer not merely to the kind of act (possession, sexual intercourse) but also a description of the circumstances in which the act must take place, such as
for instance, the particular way in which the act must be committed (eg, “violently”, in robbery), the characteristics of the person committing the act (eg, “somebody who owes allegiance” in high treason), the nature of the object in respect of which the act must be committed
(eg, “drugs” or “movable corporeal property” in theft), and sometimes a particular place where
the act has to be committed (eg, driving “on a public road”) or a particular time when or during
which the act has to be committed (eg, “during the hunting season”).
Let us consider as an example the crime of reckless driving. If one considers the section of
the statute which creates the crime (section 63(1) of the National Road Traffic Act 93 of
1996), it is clear that a person commits this crime if he (1) drives (as this word is defined in
the statute) (2) a vehicle (as this word is defined in the statute) (3) on a public road (as this
phrase is defined in the statute) (4) in a reckless way. The four requirements printed in italics
constitute the definitional elements of this crime. Requirement (1) – the driving – expresses
the requirement of the act, which forms part of the definitional elements. However, requirements (2) and (3) do not form part of the requirement of an act.
Some crimes, such as murder and culpable homicide, require the existence of a causal link
between the act and a certain situation (the result). The causation requirement forms part of the
definitional elements, and not (as is often assumed) of the requirement of an act. The causal link
is a specification of the circumstances in which the act is punishable. The causation requirement is an indication of how one crime may differ from another: whereas all crimes require an
act, not all require causation. Whether there was an act is one enquiry; whether the act caused
a certain situation (result) is an entirely different one.
If one were to discuss substantive criminal law in a strictly chronological way, one would
have to discuss the definitional elements of each specific crime at this stage, that is, after the
discussion of the concept of an act and before discussing the concepts of unlawfulness. However, authors of books on criminal law never follow such a procedure, for there are so many
specific crimes, and the individual definitional elements of these crimes are so numerous, that
it is customary to “suspend”, as it were, the discussion of all these definitional elements until
after an analysis of the other remaining general requirements of liability, such as unlawfulness
and culpability. Once all these general requirements have been discussed, the definitional
elements of the different specific crimes will be set out in the second part of this book. This is
the customary sequence of discussion followed in books on criminal law. It is therefore in the
THE DEFINITIONAL ELEMENTS
61
second part of this book that, for example, concepts such as “dignity of the court” (in the
crime of contempt of court), “prejudice” (in fraud), “marriage ceremony” (in bigamy), “damage” (in malicious injury to property”), and “movable, corporeal property” (in theft) – to
mention just a few definitional elements – will be set out and analysed.
5 Definitional elements and unlawfulness Fulfilment of the definitional elements should
not be confused with the quite distinct requirement of unlawfulness. South African writers on
criminal law tend to define unlawfulness merely as an infringement of a criminal-law provision or as compliance with the definition of the crime.3 This is clearly incorrect. In statements
such as these, two distinct elements of liability – the fulfilment of the definitional elements
and unlawfulness – are confused. The fact that the act complies with the definition of the
crime means no more than that the act accords with the definitional elements of the relevant
crime. It does not yet mean that the act is unlawful. Before an act can be described as unlawful, it must not only conform to the definitional elements but it must also comply with the
quite distinct criterion for determining unlawfulness.4
Although one must distinguish between an act complying with the definitional elements and
an act that is unlawful, the former is nevertheless a strong pointer towards the latter: it in fact
means that the act is provisionally unlawful. Before it can conclusively be branded as unlawful, it must be clear that there are no grounds of justification for the act.
The definitional elements contain at least the minimum requirements for liability necessary
to constitute a comprehensible and meaningful criminal norm.5 The definitional elements
furthermore correspond to those requirements of a crime which the prosecution in a criminal
trial has to prove in order to incriminate the accused or prove a so-called “prima facie case”
against him.6 When it creates a crime, it is impossible for the legislature to refer to every
conceivable defence (grounds of justification and grounds excluding culpability) that X may
raise and to stipulate to what extent he may successfully rely on it. The legislature leaves it to
the courts to decide to what extent an act which complies with the definitional elements may
nevertheless be justified or excused. Yet, as for the requirements contained in the definitional
elements, a court has no choice but to apply them.
6 The concept “wrongdoing” If it is clear that the act not only complies with the
definitional elements but that it is also unlawful, it means that there has been wrongdoing.7
“Wrongdoing” is thus the general concept which encompasses both the definitional elements
(and thus the act) and unlawfulness. It thus summarises all the requirements for liability with
the exception of culpability. The expressions “unlawful act” and “wrongdoing” are generally
________________________
3
See De Wet and Swanepoel 69; “Wederregtelik is ’n doen of late indien dit strydig is met ’n verbods- of
gebodsbepaling, wat die sanksie ook al mag wees”; Visser, Vorster and Maré 179, who define unlawfulness as “an infringement of a criminal law provision”; Burchell and Milton 226, who state that “conduct
will be unlawful when it does comply with the definition of a crime”.
4 I 1976 1 SA 781 (RA) 788; Clarke v Hurst 1992 4 SA 630 (D) 652–653; Fourie 2001 2 SACR 674 (C)
678b–c. For an exposition of the criterion for determining unlawfulness, see infra IV A 8–9. If “unlawful”
simply meant “contrary to the requirements set out in the definition of the crime”, one may well ask why
writers of books on criminal law (eg, Hunt-Milton and Burchell and Milton) who venture to define every
specific crime, invariably use the word “unlawful” in their definitions of crimes in addition to setting out
the definitional elements of the crime in their definitions. Elementary logic dictates that the term one sets
out to define should not already be included in the definition, otherwise the definition merely begs the question: “an act is unlawful if it is unlawful”.
5 Fletcher 567: “The minimal demand of the definition of an offence is that it reflects a morally coherent
norm in a given society at a given time. It is only when the definition corresponds to a norm of this social
force that satisfying the definition inculpates the actor.”
6 Fletcher 553–554.
7 This concept is derived from Continental literature. Fletcher 515 ff applies it and similarly describes it as
“wrongdoing”. In German it is known as “Unrecht”. On this concept, see Jescheck and Weigend 245;
Schönke-Schröder n 51 ad s 13; Jakobs 159.
62
SNYMAN’S CRIMINAL LAW
used as synonyms. The expression “actus reus”, which is often used by the courts, means the
same as “wrongdoing”.
7 Subjective component of definitional elements; relationship between definitional elements and culpability The definitional elements do not consist exclusively of objective
requirements. They also contain subjective requirements, that is, requirements relating X’s
intention.
In crimes requiring intention, the intention plays a role, not only in the determination of
culpability, but also in the wrongdoing – a term which, as explained above, includes the definitional elements. In crimes requiring negligence, both the courts and writers nowadays accept
that the negligence plays a dual role in that it forms part of both the definitional elements (or
“unlawful conduct”) and culpability.8 As far as crimes requiring intention are concerned,
however, our courts as well as most writers still assume that the intention forms part of culpability only. This is incorrect. Intention forms part of both the definitional elements and culpability.9
Since intention plays a role in both the fulfilment of the definitional elements and culpability, it would not be wrong to incorporate a full discussion of the concept of intention into the
discussion of the present element of liability, namely the fulfilment of the definitional elements. A number of Continental authors discuss intention under the definitional elements,
while others discuss it under culpability. It would, however, serve the purposes of this book
better to discuss it under culpability, since such an arrangement of the material accords more
closely with the law as presently applied by the courts in this country.
8 Intention as part of the definitional elements The influence of the psychological theory
of culpability is so strong that people accustomed to placing intention exclusively under
culpability may find it strange to hear that intention already plays a role in determining whether there has been compliance with the definitional elements as well. It is precisely for this
reason that it is necessary to explain in some detail why intention is already relevant at this
stage of the enquiry into liability.
It is important to remind oneself once again that the definitional elements contain at least the
minimum requirements necessary to constitute a meaningful criminal norm. If, after inquiring
into whether there has been a fulfilment of the definitional elements, one enquires into unlawfulness, the question one has to ask oneself is whether the conduct complying with the definitional elements accords with the criterion for unlawfulness, namely the boni mores or the legal
convictions of society.10 Yet before this question can be answered, the “conduct complying
with the definitional elements” must be recognisable as a fulfilment of a criminal norm; it
must be recognisable as conduct which the criminal law seeks to prohibit or disallow, as
opposed to conduct which is merely “neutral”, that is, might just as well prima facie amount to
perfectly lawful behaviour. For the conduct to be so recognizable, X’s intention must neces________________________
8
9
10
Ngubane 1985 3 SA 677 (A) 686E–F, 687E; Ex parte Minister van Justisie: in re S v SAUK 1992 4 SA
804 (A) 808; Burchell and Milton ch 35; Bertelsmann 1975 SALJ 59 60–62; Botha 1977 SALJ 29; Whiting 1991 SALJ 431 433–435.
The reason why the South African courts and many (although fortunately not all) writers still adhere to the
idea that all the subjective requirements for culpability belong to only one element of liability, namely
culpability, is the strong influence of the psychological theory of culpability. This theory of culpability,
which has its roots in outdated nineteenth-century concepts such as positivism and the naturalistic theory
of an act, and which has long since been rejected on the Continent, implies that the presence of elements
of liability other than culpability can be determined only with the aid of objective criteria. The psychological theory of culpability will be explained and also subjected to criticism below in the discussion of the
culpability requirement. See infra V A 9–10. For support for the view expressed in the text, see Sendor
1990 Wake Forest LR 707 717–719, who emphasises “the dual nature of mens rea elements as relevant to
both wrongfulness and responsibility [ie, culpability]”.
Infra IV A 8.
THE DEFINITIONAL ELEMENTS
63
sarily also form part of the definitional elements. The aim of the discussion which follows is to
prove and illustrate this point.
(a) Crimes of double intention In crimes requiring a double intention, that is crimes where,
apart from the intention to commit the act, an intention to achieve some further aim by means
of the act is required,11 one can determine whether the act was unlawful12 only once it is clear
that, through his act, X intended to achieve the further aim. Without the existence of such an
intent the act is not recognisable as the commission of something which the law seeks to
prohibit – in other words, as the fulfilment of definitional elements. It follows that at least part
of X’s intention must be found to exist before the question relating to unlawfulness (and a
fortiori, before the question relating to culpability) can be inquired into.13
(b) Crimes requiring a certain characteristic intention Further evidence of the existence of
subjective requirements in the definitional elements may be found in the construction of
certain other crimes which require a certain characteristic intention, such as theft and high
treason.
An analysis of the crime of theft shows that it is impossible to determine whether there was
theftuous conduct (or a fulfilment of the definitional elements of this crime) without first enquiring whether X acted with the characteristic intention required for this crime, namely an intention to appropriate the property.14 If one excludes this intent from the definitional elements,
the latter becomes meaningless in the sense that they describe conduct which might as well be
perfectly innocent.15 It follows that the intention to appropriate must be determined before
inquiring into unlawfulness and culpability.
________________________
11
Examples of such crimes are abduction (where, in addition to intending to remove the minor, X must
intend to marry or have sexual intercourse with such minor – see infra XII B; corruption (where, in addition to intending to give a gratification, X must, through such giving, intend to induce the receiver to act
in a certain way contrary to his duties – see infra XIII A; and housebreaking with intent to commit a crime
(infra XX C).
12 One can only determine whether an act was unlawful once it is clear that the act complies with the
definitional elements. This is the logical sequence in which liability is determined.
13 Let us assume that X is charged with corruption and that he raises the defence of coercion (necessity).
Necessity is a ground of justification which, if successfully raised, excludes the unlawfulness of the act.
Before the question relating to unlawfulness can be answered, one must first be certain that X committed
an act which complied with the definitional elements of the crime concerned. Yet how is it possible to
know whether the act complied with the definitional elements of this crime (corruption) if one does not
know whether the gratification was given to the receiver with the intention of inducing him to act in a certain way? The mere objective giving of, for instance, money to an official or an agent is not prohibited: it
will only be recognisable as proscribed conduct if one knows that the money was given with the intention
of inducing the official or agent to act improperly in some way, such as to award to the giver a tender
which in law he is not entitled to. It follows that one must first determine the intention with which the
benefit was given before determining the unlawfulness of the conduct. Accordingly, the intention with
which the benefit was given forms part of the definitional elements of the offence as well, and not only of
the culpability requirement. The same principle applies to other offences requiring a double intent.
14 The conduct proscribed in this crime cannot be described merely with the aid of objective concepts (ie,
concepts relating to external conduct only) such as “take”, “hold”, “carry away” or “handle”. These concepts can apply equally to non-theftuous acts, such as those committed by somebody who merely uses the
property temporarily or merely looks after it on behalf of the owner.
15 Assume that in a certain case the evidence reveals that the following externally perceivable events have
taken place: X has removed his neighbour Y’s furniture without Y’s consent and taken it to his own
house. Can one merely, on the strength of such “objective conduct”, now conclude that there was conduct
conforming to the definitional elements of the crime of theft? Certainly not. In order to answer this question one must know what X’s intention was when he carried away the furniture. If, eg, he intended to protect Y’s possessions, which were being threatened by flood waters, by carrying them away and storing
them temporarily in his own house which is situated on a higher level, there was obviously no conduct
conforming to the definitional elements.
64
SNYMAN’S CRIMINAL LAW
The same holds good for high treason. A closer look at this crime shows that the conduct
required need not take the form of any specifically defined external act. Any act – even one
which, viewed from the outside, seems completely innocent – can amount to high treason, provided X committed it with the peculiar intent required for this crime, namely the hostile intent.16 It is only X’s subjective state of mind (intention, knowledge) that brings his conduct
within the definitional elements of this crime.
(c) Crimes of attempt That X’s intention should form part of the definitional elements becomes equally clear if one considers attempt to commit a crime, especially the form of attempt
known as attempt to commit the impossible. For example, X, intending to kill his enemy Y,
fires a shot at a realistically stuffed scarecrow in the mistaken belief that he is killing Y. X is
guilty of attempted murder.17 What constitutes the wrongdoing (unlawful fulfilment of the definitional elements) for which X is punished? If one ignores X’s intent, only the external act,
namely shooting at a scarecrow, remains. This, however, does not amount to conduct proscribed by the law. Intention must therefore form part of the definitional elements.18
(d) Possession In the discussion above of crimes consisting of the unlawful possession of
an article,19 it was pointed out that the act of possession always contains a certain subjective
requirement, namely the animus or intent to possess. In fact in Jacobs20 the Appeal Court
explicitly held that the animus element of possession does not form part of culpability, but of
the act. Van Heerden JA held that one cannot say that X possesses dagga unless he knows that
the article over which he is exercising control, is in fact dagga. This subjective knowledge of
X therefore relates to the act of possession, and not to culpability.
(e) Remaining crimes As far as the remaining crimes (ie, crimes not mentioned and discussed above) are concerned, the principle remains that X’s intention should form part of the
definitional elements as well, and not be confined exclusively to culpability. Intention, like
negligence, also forms part of the definitional elements because it constitutes part of the minimum requirements which must be mentioned in the definitional elements of the crime in order
to make such definitional elements understandable and to indicate how it differs from other
crimes.
Thus, to summarise: The investigation into whether the definitional elements have been complied with logically precedes the investigation into unlawfulness (and after that, culpability). It
was shown that an investigation into the fulfilment of the definitional elements necessarily includes an investigation into X’s subjective state of mind. It therefore follows that the investigation into X’s subjective state of mind takes place before the investigation into unlawfulness
(and a fortiori culpability). It is, however, not disputed that intention also plays a role in determining the existence of culpability. Intention plays a double role in the determination of criminal
________________________
16
Assume that X’s act consisted in nothing more than affording Y, at his request, a sleeping place for one
night. Can one, on the strength of this simple set of acts alone, conclude that X has committed an act
which conforms to the definitional elements of high treason? Obviously not. Assume, however, that the
evidence further brings to light the following: Y’s plan was to look for the head of state the next day and,
having found him, murder him; X was aware of what Y intended to do, but nevertheless proceeded to give
Y accommodation in the knowledge that by so doing he made it easier for Y to achieve his ultimate goal.
If this further evidence is taken into account, one can without any difficulty conclude that X’s conduct
does indeed conform to the definitional elements of the offence. Yet, viewed from the outside, there is
nothing to indicate that X’s conduct is a fulfilment of the definitional elements of the crime.
17 Davies 1956 3 SA 52 (A); infra VIII B 8.
18 A consideration of certain other forms of attempt leads to the same conclusion. Eg, X fires a shot which
just misses Y. Does this amount to conduct conforming to the definitional elements of the crime of attempted murder? This question can be answered only by considering X’s intention. If, eg, he pulled the
trigger under the impression that the firearm was unloaded, his conduct obviously does not conform to the
definitional elements of this crime. If, in the attempted crime the intention forms part of the definitional
elements, the same consideration must apply a fortiori to the completed crime. It would be illogical to assume that intention forms part of the definitional elements in attempt but not in the completed crime.
19 Supra II C.
20 1989 1 SA 882 (A) 656–661.
THE DEFINITIONAL ELEMENTS
65
liability, namely as an element of both the definitional elements and of culpability. This is an
important principle to bear in mind when the concept of culpability is discussed below.
9 Arrangement of crimes according to their definitional elements Crimes may be divided into different groups or categories according to their definitional elements.
Firstly, one may differentiate between crimes which impair legally protected interests (eg,
malicious injury to property, assault and murder) and crimes which merely endanger such interests (eg, negligent driving, unlawful possession of a firearm, unlawful dealing in, or possession of, drugs and high treason).
Secondly, one may differentiate between crimes committed by means of a single act (eg,
assault and fraud) and crimes committed by means of more than one act (eg, robbery, which
requires both violence and an appropriation of property).
Thirdly, it is possible to differentiate between crimes requiring a single intent (such as murder, rape and assault) and crimes requiring a double intent (such as abduction, where, in addition to intending to remove the minor, X must also intend to marry or have sexual intercourse
with him or her; corruption; housebreaking with intent to commit a crime; and assault with intent
to do grievous bodily harm).
Fourthly, one may differentiate between crimes which can be committed only by means of
one’s own body (sometimes referred to as “autographic crimes”) (such as the old common-law
crimes of rape and incest) and crimes which can also be committed through the instrumentality
of another (such as murder or assault).
Fifthly, one may differentiate between crimes in respect of which a certain act or omission is
proscribed, irrespective of its result (formally defined crimes) and crimes in respect of which
any conduct that causes a certain result is proscribed (materially defined crimes, also called
result crimes).
These differentiations may have various consequences, which will be pointed out in the
course of the discussion in this book. The fifth differentiation pointed out above, namely that
between formally and materially defined crimes, is particularly important and is discussed immediately below. As will be seen, this differentiation deals with a concept which is of particular importance in criminal law, namely causation. It must be emphasised that causation is not a
general element of liability besides conduct, fulfilment of the definitional elements, unlawfulness and culpability. It is merely a way in which the definitional elements of certain crimes are
fulfilled. It therefore forms part of the definitional elements.
B CAUSATION
1 Summary of rules for determining causation Before analysing this topic, it is useful
first to summarise the most important rules pertaining to causation presently applied in our
law:
(1) In order to find that X’s act had caused a certain condition (such as Y’s death), X’s
act must first be a factual cause and secondly a legal cause of Y’s death.
(2) In order to determine whether X’s act is a factual cause of Y’s death, the conditio
sine qua non formula is applied: X’s act is a factual cause of the death if X’s act cannot be thought away without Y’s death disappearing at the same time.
(3) Many factors or events may qualify as factual causes of a prohibited condition. In
order to eliminate factual causes which are irrelevant, the criterion of legal causation
is applied.
continued
66
SNYMAN’S CRIMINAL LAW
(4) X’s act is the legal cause of Y’s death if a court is of the opinion that policy considerations require that X’s act be regarded as the cause of Y’s death. By “policy considerations” is meant considerations which ensure that it is reasonable and fair to
regard X’s act as the cause of Y’s death.
(5) In order to find that it would be reasonable and fair to regard X’s act as the cause of
Y’s death, a court may invoke the aid of one or more specific theories of legal causation. Among these theories are the “proximate cause” criterion, the theory of adequate
causation and the novus actus interveniens criterion.
2 Formally and materially defined crimes Crimes may be divided into two groups,
namely formally and materially defined crimes.
In formally defined crimes, a certain type of conduct is prohibited irrespective of the result
of such conduct. Examples of crimes falling in this category are the possession of drugs,
driving a motor car negligently, and perjury.
In materially defined crimes, on the other hand, it is not specific conduct which is prohibited,
but any conduct which causes a specific condition. Examples of this type of crime are murder,
culpable homicide and arson. Let us consider the example of murder. Here, the act consists in
causing a certain condition, namely the death of another person. In principle it does not matter
whether X caused Y’s death by stabbing him with a knife, shooting him with a revolver,
poisoning him or, in the dark, showing him a path to a destination which X knows, will lead
him over a high precipice. The question is simply whether X’s conduct caused Y’s death,
irrespective of the type of conduct employed by X.
Sometimes formally defined crimes are, for the sake of brevity, dubbed “conduct crimes”
and materially defined crimes “result crimes”.
3 The problem to be solved In materially defined crimes, the question must always be
answered whether X’s act caused the prohibited situation or state of affairs or, to put it differently, whether there was a causal link (nexus) between X’s conduct and the prohibited situation (eg, Y’s death).
In the vast majority of cases of materially defined crimes which come before the courts,
determining whether X’s act was the cause of the prohibited situation does not present any
problems. If X shoots Y in the head with a revolver or stabs him in the heart with a knife, and
Y dies almost immediately, and if nothing unusual (such as a flash of lightning) which might
be shown to have occasioned the death has occurred, nobody will doubt that X has caused Y’s
death.
However, the course of events may sometimes take a strange turn. This will be clear from
the examples and decisions which will be given or referred to below. For example, following
X’s assault on Y, Y may die after the ambulance transporting him to the hospital crashes into a
tree, or after he is struck by lightning on the spot where he is lying after the assault, or after he
receives the wrong medical treatment, or because he is a manic-depressive person and the
assault induces him to commit suicide. In such circumstances can one still allege that X has
caused Y’s death? Should the cause of death not rather be seen as the motor accident, the flash
of lightning, the incompetent medical practitioner or Y’s own conduct?
In order to keep the discussion which follows within bounds, the question of causation will
be discussed only in the context of the crimes of murder and culpable homicide, since problems in connection with causation in criminal law generally arise in the context of these crimes.
4 Precipitating death In the determination of causation in cases of murder or culpable
homicide it must be remembered that “to cause the death” actually means to cause the death at
the time when, and the place where, Y died. All people die at some time; therefore to ask
whether the act caused the death is in fact to ask whether the act precipitated the death. The
fact that Y suffered from an incurable disease from which he would shortly have died in any
67
THE DEFINITIONAL ELEMENTS
event, or that Y would in any event have been executed a mere hour later, does not afford X a
defence.
5 Factual and legal causation Despite conflicting opinions about the law relating to causation in legal literature, the courts have, especially since 1983 (when the Appellate Division
delivered judgment in Daniëls21) laid down certain broad principles relating to the determining
of a causal link. The courts have confirmed that in order to determine whether certain conduct
has caused a certain prohibited condition (eg, Y’s death), two requirements must be met: first
one must determine whether the conduct was a factual cause of the condition (in other words
whether there was a factual causation) and secondly one must determine whether the conduct
was also the legal cause of the condition (in other words whether there was legal causation).
Only if the conduct is both the factual and the legal cause of the condition can a court accept
that there has been a causal link between the conduct and the condition.22
6 Arrangement of discussion The discussion of causation which follows will follow the
above-mentioned two-part classification of the field of investigation. The following is a diagram of the broad arrangement of the field of investigation:
Causal
link
=
Factual
causation
Act is conditio sine
qua non of the result
Individualisation theories,
such as “proximate cause”,
“direct cause”, etc.
Theory of
adequate
causation
+
Legal
causation
Policy considerations require
that the act qualify as a cause.
The following criteria may
serve as aids in this respect:
Absence of a
novus actus
interveniens
7 Factual causation – conditio sine qua non In order to determine whether an act is a
factual cause of the prohibited situation all the relevant facts and circumstances must be investigated, and one has to decide with the aid of one’s knowledge and experience whether the
prohibited situation flows from X’s conduct. Sometimes it may be necessary to rely on expert
evidence.23 Where medical evidence is to be evaluated, the court must apply a judicial, and not
a scientific, measure of proof.24
________________________
21
22
23
24
1983 3 SA 275 (A).
Daniëls supra 331C–D; Mokgethi 1990 1 SA 32 (A) 39; Tembani 2007 1 SACR 355 (SCA) par 10. There
has been no attempt to conceptualise causation or any test or theory thereof in customary law; instead the
question of causation appears to be approached intuitively – Myburgh 9; Botha 11. Botha 11 concludes, in
the context of Southern Sotho groups, that causation is established where in terms of human experience
the act in question is regarded as an essential condition for that consequence. With regard to the Tswana
the use of the conditio sine qua non test, and perhaps an intervening cause test, is noted (Myburgh 9). An
exception arises in respect of crimes such as witchcraft and violation of taboo, where causation is established by means of divination – Botha 11; Prinsloo 173; see criticism in Van den Heever and Labuschagne 1996 Obiter 316.
Eg, to prove that certain medication administered by X to Y, who was a diabetic or who suffered from his
heart, could have caused his death.
In Maqubela 2017 2 SACR 690 (SCA) the court overturned a murder conviction on the basis that the trial
court failed to properly distinguish between the judicial measure of proof, being the assessment of probability, and the scientific measure of proof, being scientific certainty, in determining whether a cause of
death had been established on the medical evidence.
68
SNYMAN’S CRIMINAL LAW
If one decides that the conduct is indeed a factual cause of the situation, there is a useful
way of checking whether one’s conclusion is correct: one can use the conditio sine qua non
formula. According to this formula or theory one must ask oneself what would have happened
if X’s conduct had not taken place: would the result nevertheless have ensued? If the answer
to this question is “No”, one can be sure that the conduct is a factual cause of the situation or
result. If the answer to this question is “Yes”, one knows that the conduct was not a factual cause
of the situation. Conditio sine qua non literally means “a condition (or antecedent) without which
. . . not”; in other words, an antecedent (act or conduct) without which the prohibited situation
would not have materialised.
Conduct is therefore a conditio sine qua non for a situation if the conduct cannot be
“thought away” without the situation disappearing at the same time. A convenient English
equivalent of this formula is but-for causation (or more precisely, but-for not causation). For
conduct or an event to be a but-for cause, one must be able to say that but for the conduct or
event, the prohibited situation would not have happened.
The application of the conditio sine qua non formula may be illustrated as follows: Assume X
assaults Y and injures him to such an extent that he must undergo an operation. Y dies during the
operation. In this case X’s act is a factual cause of Y’s death, because if he had not assaulted Y,
it would not have been necessary to operate on Y and Y would not have died. Contrast, however,
the following situation: X administers poison to Y. It is a poison that takes a reasonably long
period to have an effect. Before the poison can kill Y, Y suffers a heart attack due to natural
causes (in other words, a cause not linked to the poisoning) and dies. In this case X’s act is not a
factual cause of Y’s death because Y would have died at that particular time even had X not
administered the poison.
The conditio sine qua non theory has been criticised by various writers25 who point out,
quite correctly, that one cannot describe conditio sine qua non as a test to determine the
presence of causation. One first decides on the strength of all the facts whether the conduct is
the cause of Y’s death, and only after concluding that it is, does one declare that the conduct
was a conditio sine qua non of death. One cannot determine whether the conduct is a conditio
sine qua non of the result before deciding that there is a causal connection.
If one states that “but for X’s act Y would not have died”, it means that one has already, on
the strength of other considerations, decided that the act is a factual cause of Y’s death: it
means that one is merely stating one’s conclusion. The “other considerations” mentioned here
refer to knowledge and experience which lead one to conclude that one situation flows from
another. For example, one knows from experience that if one strikes a match and throws it
onto petrol, the petrol catches alight. Thus conditio sine qua non is not a neutral, mechanical
technique that one can use to determine beforehand (ie, before one already knows that there is
a causal connection between the act and the particular situation) whether a certain act caused a
certain situation. This consideration has led most Continental writers to reject this theory as a
test to determine the existence of a causal connection; according to them it may at most be
used as a method of checking whether a causal connection which one has already accepted, in
fact exists (in other words whether one’s decision that there is a causal connection is correct).26
________________________
25
26
Van Rensburg 3–65; Van Rensburg Huldigingsbundel Pont 395–396; 1977 TSAR 101; Visser 1989
THRHR 558; Visser, Vorster and Maré 112–117, 120–122; Potgieter 1990 THRHR 267.
See the criticism of this theory by Jescheck and Weigend 281–282; Schönke-Schröder n 74 ad s 13;
Jakobs 186 (“Eine verwirrende, das Kausalproblem verfälschende und letzlich restlos überflüssige Rolle
spielt . . . die . . . conditio sine qua non”); Schmidhäuser 226 (who describes the theory as “Selbsttäuschung”); Hazewinkel-Suringa-Remmelink 175–176.
THE DEFINITIONAL ELEMENTS
69
All this does not mean that the conditio sine qua non formula is worthless and that it should
be rejected as a checking mechanism. This formula or theory has, in any event, already attained
such a firm footing in our case law27 that it is difficult to believe that the courts would easily
reject it. It can be accepted that this concept will retain the hold it has already secured in our
legal literature and case law. However, in the light of the above criticism of this concept, one
should guard against describing conditio sine qua non as a test for determining (factual) causation. It would, however, not be wrong to describe it as a “formula”, a “concept” or a “theory”.
In the discussion of causation below this terminology will sometimes be used.
8 Factual causation covers a wide field A specific situation or result does not have one
factual cause, but a whole number of factual causes. Every condition imaginable which cannot
be “thought away” without the prohibited situation also disappearing qualifies as a factual cause
or conditio sine qua non of the particular situation (result). If X stabs Y with a knife and kills
him, it is not only the stabbing which is a conditio sine qua non of the death, but also, for
example, the manufacture and sale of the knife.
However, one must bear in mind that the determination of causation is not limited to ascertaining whether there was factual causation. In fact, once one has decided that there is factual
causation, one has merely reached the half-way mark in one’s investigation into the existence
of a causal link: as will be seen hereafter, the second half of the investigation comprises an investigation into legal causation. This latter investigation essentially comprises the application
of some criterion whereby the wide ambit of factual causation and the operation of the conditio
sine qua non formula may be limited.
9 Legal causation – general The mere fact that X’s act is a factual cause of the forbidden
situation is still not sufficient ground upon which a court may find that there is a causal link
between the act and the situation (result). Before a court can find that there is such a causal link,
it must be clear that the act is not merely a factual, but also a legal cause of the situation.28
This means that the act must qualify as a cause of the forbidden result not only according to
the criteria of natural science or one’s ordinary experience, but also according to the criteria
applied by the law. The legal criteria are narrower than those applied to determine factual causation; they are based upon normative value judgments or policy considerations, on questions
such as whether it is reasonable or just to regard the act as a cause of the forbidden situation.
Only an act which is a factual cause of the situation can qualify as a legal cause thereof.
10 The criterion for legal causation The question that arises next is what criterion to apply
to determine whether an act which is a factual cause of the prohibited situation also qualifies
as a legal cause of the situation. This question leads one to a number of different theories or
criteria formulated in the legal literature. These theories are usually referred to as the “theories
of legal causation”.
In Mokgethi29 the Appellate Division held that it is wrong to identify only one of these theories as the correct one to be applied in all cases and in so doing to exclude from consideration
all the other theories of legal causation. According to the court one should apply a flexible
criterion: the overriding consideration in the determination of legal causation is the demands
of what is fair and just; in endeavouring to ascertain what is a fair and just conclusion, however,
________________________
27
28
29
Daniëls 1983 3 SA 275 (A) 331B–C: “Daar kan weinig twyfel bestaan, dat in ons regspraak die bepaling
van ‘feitlike’ oorsaaklike verband op die grondslag van die conditio sine qua non geskied”; see also
332F–G and 324G–H. See also Minister of Police v Skosana 1977 1 SA 31 (A) 33, 34–35, 43–44; Van As
1967 4 SA 594 (A) 602; Haarmeyer 1971 3 SA 43 (A) 47H; Tembani 2007 1 SACR 355 (SCA) par 10.
Daniëls supra 325A, 331C–D; Mokgethi 1990 1 SA 32 (A) 39–40, especially 39D and 40C; Madikane
1990 1 SACR 377 (N) 384G; Tembani supra par 10.
1990 1 SA 32 (A) 40–41.
70
SNYMAN’S CRIMINAL LAW
a court may take into consideration the different theories of legal causation referred to above
and use them as guides in reaching a conclusion.
In the discussion which follows, the most important theories of legal causation will be briefly explained.
11 The individualisation theories This generic concept includes a number of theories or
tests which all have the following in common: among the great number of conditions or acts
which constitute factual causes of the prohibited situation only a single one – usually the most
operative condition – must be singled out as the legal cause. Thus, it is argued, for example, that
one must look for the “proximate” cause or condition, or the “substantial cause”, or the cause
which in terms of its value or importance is the most decisive (causa causans), or the “direct
cause” or the “efficient cause”. These (and similar) expressions (such as “immediate” or “effective cause”) amount to substantially the same thing, namely that one must search for only one
individual condition as the legal cause of the prohibited situation.
The objections to these theories are that the criteria they adopt are arbitrary and depend upon coincidence. Two or more conditions may be operative in equal measures in bringing about
a result. This is especially so when a number of people participate in the commission of a
crime, as where X incited or persuaded Z to commit a murder, which Z did while W stood
guard in order to warn Z should the police arrive. Did X, Z or W cause the death? In a situation such as this, where three different people have acted, one cannot regard the act of one as
the only cause of death to the exclusion of the acts of the other two. The principle that a
situation may have more than one cause is recognised in criminal law. It is wrong to assume
that only the very last grain in the scale causes it to tip and not the combined mass of the other
grains too.
As a result of these objections, the individualisation theories have, for the most part, been
rejected on the European continent. Although some of these theories have been followed in
certain South African judgments30 there are also cases in which the courts have refused to
adopt these criteria.31 The clearest example is Daniëls,32 in which two judges of appeal expressly refused to accept that only an act which is a proximate cause of the death could qualify
as its cause.33 It is submitted that this view is correct. “Proximate cause” and other individualisation theories are too vague and arbitrary to serve as a satisfactory criterion.
12 The theory of adequate causation Because of the vagueness of the individualisation
theories, many jurists have rejected attempts to identify only one individual action as the cause
of a condition. Instead, they base a causal relationship on generalisations which an ordinary
person may make regarding the relationship between a certain type of event and a certain type
of result, and on the contrast between the normal and the abnormal course of events. This
generalisation theory (a term used to distinguish it from the individualisation theories) is
known as the theory of adequate causation.
According to this theory an act is a legal cause of a situation if, according to human experience, in the normal course of events, the act has the tendency to bring about that type of
situation. It must be typical of such an act to bring about the result in question. If the turn of
events is atypical in the sense that the act has brought about an unlikely, unpredictable or
________________________
30
Burger 1959 2 SA 110 (T) 113C (“causa causans”); Grobler 1972 4 SA 559 (O) 561C (“die direkte en
enigste oorsaak”); Grobler 1974 2 SA 663 (T) 667H (“die onmiddellike oorsaak”); Jantjies 1991 1 SACR
74 (C) 78B (“die regstreekse oorsaak”).
31 Eg, Grotjohn 1970 2 SA 355 (A) 363–364.
32 1983 3 SA 275 (A).
33 See 314C (per Van Winsen AJA), as well as 331A–B and 332–333, especially 333G (per Jansen JA).
Contrast, however, the approaches of Nicholas AJA 304D–E and Trengove JA 324–325. Daniëls’s case is
discussed in more detail infra par 20.
THE DEFINITIONAL ELEMENTS
71
uncontrollable result, there is no “adequate relationship” between the act and the result and the
act cannot be said to have caused the result. To put it more simply, the act is the cause of the
situation if it can be said: “That comes of doing so-and-so”. The test always involves a consideration of the probable results of an act, and for this reason the theory is reminiscent of the test sometimes applied in Anglo-American law, according to which one must determine whether the result
corresponds to the “natural and probable consequences” or the “reasonable consequences” of the
act.34
To strike a match is to perform an act which tends to cause a fire, or which in normal circumstances has that potential. If, therefore, X strikes a match and uses the burning match to
set a wooden cabin alight, one can aver without difficulty that his act was the cause of the
burning down of the cabin. However, the question arises whether his act can be described as
the cause of the burning down of the cabin in the following circumstance: All he does is to call
a dog. The dog jumps up and in so doing frightens a cat. The frightened cat jumps through a
window of the cabin, knocking over a lighted candle which in turn sets the whole cabin alight.
If one applies the theory of adequate causation, one must conclude that in this situation X’s act
was not the legal cause of the burning down of the cabin, because all that X did was to call a
dog, and merely calling a dog is not an act which, according to human experience, in the
normal course of events has the tendency to cause a wooden cabin to burn down.
In order to determine whether there is an “adequate relationship” between the act and the
result, all the factual circumstances ascertainable by a sensible person should be taken into
consideration. If X gives Y, who has a thin skull, a light slap on the head and Y dies, the fact
that Y had a thin skull should be taken into consideration in the application of the test. The
question is therefore not “has a slight blow to another’s head the tendency to cause death?” but
“has a slight blow to the head of somebody who has a thin skull the tendency to cause death?”
Since the answer to the latter question is “yes”, there is in terms of the theory of adequate
causation a causal relationship in this type of situation.
However, this does not mean that X’s particular knowledge is left out of consideration in
determining what a probable result would be in the circumstances. The criterion is the
knowledge of an ordinary sensible person who in addition has the extra knowledge which X
may happen to have. Thus if X has some additional knowledge regarding the nature or effect
of the act compared to what an objective observer would have, that additional knowledge must
be taken into consideration. Furthermore, in deciding what a probable result might be, the
totality of human knowledge must be taken into consideration, including knowledge which
only a specialist in a particular field might have. Even knowledge which comes to light only
after the occurrence of the events in question may be taken into consideration.35
When applying the sine qua non theory one applies an objective and diagnostic test, that is,
one looks back at events; when applying the theory of adequate causation one uses an objective prognostic test, that is, one looks forward as from the moment of the act and asks whether
________________________
34
35
While there is no unequivocal affirmation for the theory of adequate causation to take precedence over
other theories of causation in the case law, support for the adequate causation approach is to be found in
Loubser 1953 2 PH H190 (W), where Rumpff J stated that in the eyes of the law an act is a cause of a situation if, according to human experience, the situation will flow from the act. This statement was approved in Grobler 1972 4 SA 559 (O) 560–561. In Daniëls supra 332H Jansen JA applies a similar
approach and reasoning in stating that “[v]olgens menslike ervaring het die skote deur die eerste appellant
die algemene neiging gehad om in die normale loop van sake die dood deur ’n skietwond teweeg te
bring”. The learned judge proceeds to state that though X’s act of firing shots could be seen as adequate in
respect of the death of the victim, “die eintlike vraag bly of ’n kopskoot deur die tweede appellant as ’n
novus actus interveniens beskou moet word”. It is evident that both the adequate causation and novus actus approaches are in any event subservient to the application of “beleidsoorwegings” (policy considerations) in the reasoning of Jansen JA (see 331D–333A).
Van Rensburg 195–197; Van der Walt 1966 THRHR 244 251; Hart and Honoré 482–483; SchönkeSchröder n 87 ad s 13; Joubert 1965 Codicillus 6 10.
72
SNYMAN’S CRIMINAL LAW
that type of result was to be expected. An advantage of the test is that it limits the field of
possible liability by taking into account man’s ability to direct or steer the chain of causation
and in this way eliminates the role of mere chance.
13 Novus actus interveniens This expression means “a new intervening event”. It is an
important criterion which the courts in particular apply to determine causation, although here,
as will be shown later, one is, strictly speaking, not dealing with yet another theory of causation. If a novus actus interveniens (sometimes abbreviated to novus actus or nova causa) has
taken place, it means that between X’s initial act and the ultimate death of Y, an event which
has broken the chain of causation has taken place, preventing one from regarding X’s act as
the cause of Y’s death. Novus actus interveniens is actually a negative “test” of causation: a
causal relationship is assumed to exist if an act is a conditio sine qua non of a result and a
novus actus is lacking.
An example of the application of this concept is the following: X inflicts a light, non-lethal
wound on Y’s head. Y is taken to a doctor for treatment. The moment before he enters the
building in which the doctor’s rooms are, Y is struck and killed by lightning. If X had not
assaulted Y, Y would not have gone to the doctor and would therefore not have been struck by
lightning; X’s act is therefore a sine qua non of Y’s death. Nevertheless X’s act is not regarded as the legal cause of death because the flash of lightning was a novus actus. The position
would be the same if, after the assault, and whilst Y was being taken to hospital in an ambulance, which was being driven recklessly, an accident occurred in which Y was killed; or if a
fire broke out in the hospital to which Y had been admitted for treatment and Y died in the
fire.
If X performs an act which is a conditio sine qua non of Y’s death and X, Y or a third party
(Z) subsequently performs another act which hastens Y’s death, it does not necessarily mean
that the latter act is regarded as a novus actus. If, for example, X assaults Y, who runs away in
order to avoid being assaulted further and then in the process of fleeing sustains a lethal injury
as a result of which he dies, the causal relationship between X’s assault and Y’s death is not
broken. The position is the same if the medical treatment which Y receives in hospital is
administered in good faith and with normal care, but subsequently proves to have been the
wrong treatment,36 or if X gives Y, who is suffering from depression, a gun with which he
may shoot himself if he so wishes, and Y does in fact kill himself.37
The important question which now arises is how one can know whether a subsequent event
qualifies as a novus actus so that the earlier one may no longer be regarded as a cause of the
prohibited situation. In Grotjohn38 Steyn CJ said that a later event can be deemed to have
broken the causal link only if it is a completely independent act, having nothing to do with and
bearing no relationship to X’s act. A reasonable inference to be drawn from the examples in
our case law is that an event can be a novus actus interveniens only if it is an unsuspected,
abnormal or unusual event, in other words one which, according to general human experience,
deviates from the ordinary course of events and cannot be regarded as a probable result of X’s
act. Viewed thus, there is practically no difference between the test to determine a novus actus
and the test of adequate causation.
________________________
36
37
38
Infra par 20.
Infra par 19.
1970 2 SA 355 (A) 364A. For other decisions dealing with novus actus, see Hibbert 1979 4 SA 717 (D)
721–722; Daniëls 1983 3 SA 275 (A); Williams 1986 4 SA 1188 (A); Madikane 1990 1 SACR 377 (N)
384G; Tembani 1999 1 SACR 192 (W); Lungile 1999 2 SACR 597 (SCA) 605–606; Counter 2003 1
SACR 143 (SCA) 153; Agliotti 2011 2 SACR 437 (GSJ), discussed critically by Jordaan 2011 SACJ 356.
For a detailed discussion of the judgments in Tembani and Counter, see Carstens 2006 SACJ 192.
THE DEFINITIONAL ELEMENTS
73
An event can qualify as a novus actus only if it is itself a conditio sine qua non of the resultant situation and if X had not foreseen or intended that it should result in the prohibited situation (such as Y’s death).39
14 The foreseeability theory According to this theory an act is a legal cause of a situation
if the situation is reasonably foreseeable for a person with a normal intelligence.40 The objection to this test is that it confuses the requirement of causation with the requirement of culpability (and more particularly negligence).41
15 Criterion applied by courts: policy considerations Having set out the most important
theories or tests for determining legal causation, the question arises which one is the correct
one to apply. It is relatively easy to set out the courts’ answer to this question: the Appellate
Division has, especially in Mokgethi,42 stated very clearly that it is incorrect to single out one
of these theories as the only correct one and then to apply that theory in all cases. The court
held that courts should adopt a flexible attitude, which implies that a court should not regard
only one specific theory as the correct one. One criterion may produce the fairest result in one
set of facts, while another set of facts may best be served by applying another criterion.
According to the Appellate Division, the overriding consideration in deciding upon legal
causation is that a court should be guided by policy considerations. This means that a court
should strive towards a conclusion which would not exceed the limits of what is reasonable,
fair and just. The particular theories of legal causation discussed above, such as “proximate
cause”, adequate causation and the absence of a novus actus, are aids that may be applied in
order to reach a just conclusion.
The courts’ flexible, open approach to legal causation, with its references to “what is fair
and just”, may, on a purely theoretical level, appear to be very equitable, but the question does
arise whether this open approach is not – precisely because of its flexible nature – too vague.
The price a legal system pays for criteria which are too vague is lack of legal certainty. The
danger of adopting such a wide criterion is that when a court is confronted with a concrete set
of facts in respect of which there has not yet been an earlier precedent, it would simply rely on
its intuition in deciding whether a particular act or event is legally a cause of a situation.
Nonetheless, the most recent case law is indicative that the courts are intent on giving effect
to the “adaptable principles of legal causation” as referred to in Mokgethi.43 In De Klerk v
Minister of Police44 the test for legal causation was described as “a flexible test that may
consider a myriad of factors”, citing Mokgethi. Listing the traditional criteria embodied in tests
such as adequate causation and novus actus interveniens, Theron J pointed out that none of
these tests were without problems, in contradistinction to the “elastic approach to legal causation” in Mokgethi, which is flexible and sensitive to public policy considerations.45 The
traditional tests for legal causation remain relevant, but specifically as subsidiary determinants, to considerations of public policy, reasonableness, fairness and justice, which in turn are
rooted in the Constitution and its values.46
________________________
39
40
41
42
43
44
45
46
Infra par 24.See De Jager 2016 2 SACR 716 (ECG) par 13.
Support for this approach may be found in Van den Berg 1948 2 SA 836 (T) 838; Stavast 1964 3 SA 617 (T)
621; John 1969 2 SA 560 (RA) 565–571.
See John supra 565, where “foreseeability” is applied to both fault and causation in the same breath.
1990 1 SA 32 (A) 39–41.
See Counter 2003 1 SACR 143 (SCA) par 29.
2020 1 SACR 1 (CC) par 29, per Theron J.
Ibid.
Par 30, citing Mashongwa v Passenger Rail Agency South Africa 2016 2 BCLR 204 (CC) par 68. This
approach allows for the infusion of constitutional values into the common law, by “applying the traditional factors, ascertaining their implications, and testing those implications against considerations of public
policy as infused with constitutional values” (par 31). See further Mahleza v Minister of Police 2020 1
[continued]
74
SNYMAN’S CRIMINAL LAW
16 Multiple causes of same condition In order to find that a causal link was present, it is
unnecessary for a court to go so far as to find that X’s act was the sole cause of the situation; it
is sufficient to find that the act was a cause (possibly one of many) of the situation.
17 Causation and the doctrine of common purpose If X and Z (and perhaps others
together with them) acted with a common purpose to kill Y and their common endeavour leads
to Y’s death, they are liable for murder in terms of the doctrine of common purpose (which
will be discussed later).47 According to this doctrine, each of them is guilty of murder despite
the fact that there is no causal link between the individual conduct of each of them and Y’s
death. (There is, of course, a causal link between their mutual conduct and Y’s death.)
18 Causation by an omission In the discussion of causation thus far the question throughout has been whether a positive act was the cause of a certain situation. It is settled that an
omission to act, resulting in a certain situation, may be punishable, as when a mother fails to
feed her baby which then dies, or where a railway crossing attendant fails to lower the boom
when the train is approaching and a motorist is then crushed by the train.
A person’s omission to act positively, resulting in a certain prohibited state of affairs, is
punishable only if that person has a legal duty to act positively. The situations and cases in
which there is such a legal duty according to our law, were mentioned in the discussion
above48 of omissions.
In applying the conditio sine qua non test to an omission, one must establish whether the
prohibited result would still have ensued if in place of X’s omission there had been a positive act
on his part, in accordance with his legal duty. Instead of thinking away the act, one must imagine
a positive act in the place of the omission.49 The result is that strictly speaking, the enquiry
into causation in cases of omission does not entail determining a conditio sine qua non (condition without which . . .), but a conditio cum qua non (condition with which . . .).
19 Subsequent conduct by the victim We now proceed to a discussion of the courts’
treatment of certain concrete situations. It is convenient to divide these situations into a number of categories, and to discuss them under the following separate headings: Y’s subsequent
conduct; that of a third party (Z); that of X himself; extraordinary circumstances such as
natural events; and cases where Y had some abnormal physiological condition. Firstly, attention is paid to cases where there was some subsequent conduct on the part of the victim (Y).
If X encourages Y to commit suicide, or provides him with the means of doing so, and Y
indeed commits suicide, the fact that the last act which led to Y’s death was his (Y’s) own
conscious and voluntary act does not mean that the causal chain which X has set in motion has
been broken; Y’s voluntary act therefore does not constitute a novus actus.50 This conclusion
is perfectly compatible with the theory of adequate causation: as was pointed out above,51 the
particular circumstances of which X was aware must, according to this theory, also be considered when determining whether the act had the tendency to bring about that kind of result.
Our courts have not yet held, as far as could be ascertained, that a person’s refusal or omission to submit to medical treatment after being assaulted breaks the causal chain. Where the
wound is not of a serious nature (in other words, where it will not lead to death regardless of
________________________
47
48
49
50
51
SACR 392 (ECG) par 65; Nohour v Minister of Justice and Constitutional Development 2020 2 SACR
229 (SCA) par 16, cited in Mahlangu v Minister of Police 2020 2 SACR 136 (SCA) par 38.
Infra VII B 7–16.
Supra II B 3, 4.
Van As 1967 4 SA 594 (A) 601–602;Van Heerden 2010 1 SACR 529 (EC).
Ex parte die Minister van Justisie: in re S v Grotjohn 1970 2 SA 355 (A); Agliotti 2011 2 SACR 437 (GSJ)
par 21.
Supra par 12.
THE DEFINITIONAL ELEMENTS
75
whether medical treatment is given) and Y unreasonably refuses medical treatment or advice,
no causal link ought to be found. It is submitted that a person’s refusal on religious grounds to
undergo or allow a blood transfusion which would undoubtedly save his life must be regarded
as conduct breaking the causal chain.52
In Mokgethi53 X shot a bank teller (Y) in the back during a robbery, as a result of which Y
became a paraplegic and was confined to a wheelchair. Y’s condition improved to such an
extent that he was later able to resume his work at the bank. His doctor instructed him to shift
his position in the wheelchair regularly in order to prevent pressure sores from developing on
his buttocks. He failed to shift his position often enough, with the result that serious pressure
sores and accompanying septicaemia developed, causing his death. He died more or less six
months after he had been shot. The court held that X’s act was not the legal cause of Y’s
death. After an analysis of cases in which the victim’s failure precipitated the death, Van
Heerden JA laid down the following general criterion which could, according to him, be used in
a number of situations of this nature: X’s act which is a conditio sine qua non of Y’s death is
normally too remote from the result to lead to criminal liability (ie, to qualify as a legal cause
of Y’s death) if (i) the immediate cause of Y’s death was a failure on his part to obtain medical
or similar advice, to undergo treatment or to follow instructions; (ii) the wounding itself was
not lethal or, at least, no longer lethal at that particular time; and (iii) the failure was relatively
unreasonable, that is, unreasonable also taking into account, for example, the victim’s characteristics and convictions.54
20 Subsequent conduct of a third party If X assaults Y, who is then given the wrong
medical treatment, which leads directly to his death, the question arises whether the medical
treatment has interrupted the chain of causation. The answer to this question usually depends
on how serious the initial wound has been and the degree of negligence or malfeasance on the
part of the doctor or medical staff. It is submitted that the following propositions are a fair
reflection of our law on this topic:
(1) If the injuries were of such a serious nature that Y would have died in any event, despite
correct medical treatment, then the fact that the treatment was injudicious or negligent
does not amount to a novus actus.
(2) If the injuries were not of such a serious nature and medical treatment was given bona fide
and with normal care, then the fact that it subsequently appears that the treatment was
wrong, cannot operate in X’s favour: the causal nexus is established.55 Doctors may sometimes differ among themselves, and in an emergency a doctor must sometimes make a
hasty decision which may afterwards prove to be incorrect. Human experience tells us that
medical science is not infallible.56
(3) If the injuries were not of such a serious nature as in (1) above and the wrong medical
treatment was given intentionally or in a grossly negligent manner, the chain of causation
is interrupted.57 To use the terminology of the theory of adequate causation, one may say
________________________
52 As was held in the English case of Blaue [1975] 3 All ER 446 (CA). This approach is analogous in
principle to the “take your victim as you find him” maxim – see par 23 infra.
53 1990 1 SA 32 (A), followed in Seemela 2016 2 SACR 125 (SCA).
54 See 46J–47B.
55 Dawood 1972 3 SA 825 (N) 828; Counter 2000 2 SACR 241 (T) 250.
56 Carstens 2006 SACJ 192 203: “Not every medical slip, wrong diagnosis or mistake imports negligence . . .
Despite good intentions, things sometimes go amiss in surgical operations or medical treatment.”
57 Du Plessis 1960 2 SA 642 (T) 645B; Counter 2000 2 SACR 241 (T) 250a–b; Jordan (1956) 49 Cr App
Rep 152. Note the following case in which there was no suggestion of incorrect medical treatment: For a
case in which there was no suggestion of any incorrect medical treatment, see Williams 1986 4 SA 1188
(A).
76
SNYMAN’S CRIMINAL LAW
that one assumes or expects that medical treatment will not be performed intentionally incorrectly (ie, mala fide) or in a grossly negligent manner.
(4) What is the position if the injuries were of a serious nature and Y’s life could have been
saved by correct medical treatment, but the medical treatment was improper or negligent?
The answer to this question depends on whether, at this time and in this country, one can
expect medical treatment always to be proper and proficient. It would seem that the answer to the latter question is negative, and that even in these cases the courts would not
automatically hold that the causal chain has been broken by the improper medical treatment. For example, in Tembani58 the Supreme Court of Appeal had to decide whether improper treatment of Y by hospital staff who were overworked and understaffed (a scenario
not uncommon in South Africa), broke the causal chain. The court held that it did not. The
court stated that the deliberate infliction of an intrinsically dangerous wound, from which
Y is likely to die without medical intervention, must generally lead to liability for an ensuing death. This rule applies even if the medical treatment later given is substandard or
negligent.59 It is submitted that the decision in Tembani is correct. Although the approach
adopted in this case is hardly a compliment to the medical services in this country, it is a
realistic view which merely confirms what is already generally known. Quite apart from
this, it seems unjust to allow X, who has intentionally inflicted a lethal or at least very serious injury to Y, to argue afterwards that the subsequent improper medical care should
redound to his benefit and absolve him from full responsibility for his deed. The court in
Tembani added obiter that even if the medical treatment was grossly negligent, it would
still not break the causal chain.60 It is submitted that this latter view goes too far. Although
medical services in South Africa are very strained and not always up to standard, it seems
incorrect to assume that in the normal course of events one can expect medical services in
this country that are grossly negligent.
In Daniëls61 X twice shot Y in the back with a firearm, whereupon Y fell to the ground.
Although still alive, he would have died unless he received medical treatment within about
thirty minutes – something which was highly unlikely, since the events took place on a lonely
road in the countryside. X threw the firearm onto the ground near Y. Shortly after Y fell to the
ground, Z appeared on the scene and shot Y through the ear. Of the five judges of appeal who
heard the appeal, two (Botha JA and Nicholas AJA) held that X and Z had acted with a common purpose and that their joint conduct was therefore the cause of death.62 According to the
interpretation of the evidence by the other three judges of appeal, however, X and Z had acted
independently of each other.63 Not one of the judges doubted that Z’s act was a cause of the
death. However, the question that the last-mentioned three judges had to decide was whether
(assuming that X and Z had acted independently of each other) X’s act also amounted to a
cause of the death. Two of the three judges, namely Jansen JA and Van Winsen AJA, held that
there was indeed a causal link between X’s act and Y’s death. According to these two judges
policy considerations did not demand that Z’s act qualify as a novus actus. Although Z’s act
was the proximate cause of the death, causation in criminal law is not (according to these two
judges) based exclusively on the criterion of proximate cause.64 However, Trengove JA, who
was the third judge to find that X and Z had acted independently of each other, was of the
________________________
58
59
60
61
62
63
64
2007 1 SACR 355 (SCA). For a discussion of the effects of medical negligence on causation, see Carstens
2006 SACJ 192.
Par 25.
Par 29.
1983 3 SA 275 (A).
304E (Nicholas AJA); 322F–G, 323C–D (Botha JA).
324B (Trengove JA); 314A–D (Van Winsen AJA); 330F–G (Jansen JA).
314A–D (Van Winsen AJA); 332–333 (Jansen JA).
THE DEFINITIONAL ELEMENTS
77
opinion that Z’s act was indeed a novus actus which broke the chain of causation between X’s
act and Y’s death.65
It is submitted that the judgment of Jansen JA (with which Van Winsen AJA agreed) is to be
preferred to that of Trengove JA. The two shots fired into Y’s back by X would in any event
have caused Y’s death,66 even had Z not also fired a shot at Y, and, as Jansen JA quite correctly pointed out,67 human experience showed that X’s shots had the tendency, in the ordinary
course of events, to result in death.
The conduct of a police official who intervenes in an armed robbery and, in an attempt to
prevent the robbery or to apprehend the robbers, fires a shot which kills an innocent bystander,
does not break the causal chain between the acts of the robbers and the death of the bystander.68
21 X’s own subsequent conduct X, wanting to kill Y, assaults him, then, thinking he is
dead while he is in fact still alive, burns the supposed corpse. If Y really dies as a result of the
burning, X’s subsequent conduct is not regarded as a novus actus.69 However, the two events
must be so closely related to each other as regards duration and method of performance that it
may be said that for all practical purposes they constitute one single transaction.70 The second
act or event is not a novus actus since it is not unusual, abnormal or unexpected for a murderer
to hide his victim’s corpse or to try and erase the evidence of his evil deed. Both acts are
performed by the same person with the same end in view.
22 Acts of nature, vis major, etc Although such cases have not yet figured in our reported
case law, there can be little doubt that if X assaults Y, and the injured Y is then killed by a
flash of lightning, a tsunami wave or a wild animal, eventualities which X has not foreseen, the
subsequent event is a novus actus. The examples given are eventualities which general human
experience does not lead one to expect after an assault.
23 Abnormal physiological condition of victim It was pointed out above in the discussion
of the theory of adequate causation71 that, according to this theory or test, any unusual physiological condition of Y, such as a thin skull or a weak heart, must indeed be taken into consideration, and that where a person with such physical qualities is assaulted there is a causal
nexus between the assault and the death, even though Y would not have died if he had not had
these exceptional qualities. Our courts have also accepted the principle that, with regard to
causation, Y’s particular physiological condition cannot operate as a defence in X’s favour.72
This principle is sometimes expressed by the maxim “you take your victim as you find him”.
________________________
65 325E–H.
66 Cf the remarks at 314A–B, 332H. If the wounds inflicted by X were not so serious that they would in any
event have led to Y’s death, Z’s conduct might well have amounted to a novus actus – see 314D (per Van
Winsen JA).
67 332H.
68 Lungile 1999 2 SACR 597 (SCA) 605–606. Cf also Nhlapo 1981 2 SA 744 (A).
69 Masilela 1968 2 SA 558 (A); Thabo Meli [1954] 1 All ER 373 (PC).
70 If the two events cannot be regarded as one single transaction, X may escape liability, since his assault
(X’s first act in respect of Y) did not constitute a completed act of murder, although it was accompanied
by culpability, while the second act was, in turn, committed without culpability (because X was then under the impression that Y was already dead and that he was therefore dealing with a corpse), although it
constituted the completed act required for murder. In such a case X escapes liability because the act and
the culpability were not present contemporaneously. This requirement of contemporaneity is discussed infra V A 7.
71 Supra par 12.
72 Du Plessis 1960 2 SA 642 (T); Ntuli 1962 4 SA 238 (W).
78
SNYMAN’S CRIMINAL LAW
24 Novus actus foreseen by perpetrator All the above rules relating to a novus actus are
subject to the qualification that if X planned the unusual turn of events or foresaw it, it cannot
amount to a novus actus.73 This accords with the rule of the adequate causation test mentioned
above74 that, in determining whether an act tends to lead to a certain result, one should take
into account not only the circumstances ascertainable by the sensible person, but also the additional circumstances known to X.
________________________
73
74
Grotjohn 1970 2 SA 355 (A) 364; Hibbert 1979 4 SA 717 (D) 722.
Supra par 12.
CHAPTER
IV
UNLAWFULNESS (JUSTIFICATION)
A THE CONCEPT OF UNLAWFULNESS
1 “Visible” and “invisible” requirements of liability A lay person would probably be
inclined to think that once the two requirements discussed in the previous two chapters (namely conduct and compliance with the definitional elements) have been complied with, nothing
more is required in order to hold X liable and convict him. However, somebody who is versed
in the principles of criminal law will know that there are still two very important further
general requirements of liability, namely unlawfulness and culpability, which must be complied with before X can be held liable.
The reason why a lay person might not think of these two requirements is because they are,
as it were, “unwritten” or “invisible”: the contents of the requirements of unlawfulness and
culpability do not normally form part of the “letter” or “visible part” of the legal rule or
definition of the crime. More particularly, the word “unlawful” does not normally even appear
in the definition of a crime in a statute. Nor can one necessarily expect to find, in a statutory
definition of a crime, words such as “intentionally” or “negligently” that serve as synonyms of
the culpability requirement. Nevertheless, a court will not convict X of a crime unless it is
satisfied that the conduct complying with the definitional elements was also unlawful and
culpable – in other words, unless these “unwritten” or “invisible” requirements have also been
complied with.
2 Compliance with definitional elements and unlawfulness The mere fact that there is an
act which complies with the definitional elements does not mean that the person who performs
the act is liable for the particular crime. Satisfying the definitional elements is not the only
general requirement for liability. The next step in the determination of liability is to enquire
whether the act which complies with the definitional elements is also unlawful.
An act which complies with the definitional elements is not necessarily unlawful. This will
immediately become clear if one considers the following examples:
(a) The definitional elements of murder read “the intentional killing of another human
being”. Nevertheless a person is not guilty if she kills somebody in self-defence; her act
is then justified and therefore not unlawful.
(b) X inserts a knife into Y’s body. Although her act may satisfy the definitional elements of
assault, the act is justified and therefore not unlawful if X is a medical doctor who is performing an operation on Y with Y’s permission, in order to cure her of an ailment.
(c) X exceeds the speed limit while driving her motor car. Her conduct satisfies the definitional elements of the crime of exceeding the speed limit. However, if she does so in
79
80
SNYMAN’S CRIMINAL LAW
order to get her gravely ill child to hospital for emergency treatment, her conduct is justified and therefore not unlawful.1
There are many other examples of conduct which satisfies the definitional elements, but are
nevertheless not unlawful. It is a common phenomenon that an act which ostensibly falls
within the letter of the law (in other words, which corresponds to the definitional elements)
proves upon closer scrutiny not to be contrary to the law, as the examples above illustrate. In
these cases the law tolerates the violation of the legal norm, because the law does not consist
merely of commands and prohibitions contained in the definitional elements, but also of rules
or criteria which in certain circumstances permit an act which is contrary to such a command
or prohibition. An act is unlawful if it is in conflict with the rules or criteria of the legal order
as a whole, and not merely with the particular definitional elements.
3 Why the term “unlawfulness” may cause confusion The word “unlawful” is one of the
most unfortunate and confusing terms used in the description of criminal liability. It would be
a good thing if one could dispense with this term and replace it with a term such as “unjustified” or “lack of justification”, but unfortunately the term “unlawful” is already too firmly
embedded in our legal language to be simply ignored and replaced by another.
The reason why the term “unlawful” may cause confusion is that the term can easily be confused (as indeed it often is) with the quite distinct requirement that the conduct must comply
with the definitional elements. The word “unlawful” creates the impression – especially in the
eyes of a lay person – that it merely means that the conduct must be contrary to the “(visible)
letter” of the legal rule in question – that is, the definitional elements. This, however, is not
what the word means. Whether the conduct is unlawful in fact constitutes an enquiry distinct
from the enquiry into whether there is compliance with the definitional elements.
On the other hand these two enquiries are closely linked. The link is the following: The fact
that an act complies with the definitional elements is a pointer or sign that it may also be
unlawful. If the act complies with the definitional elements it can, in fact, be described as
“provisionally unlawful” or “prima facie unlawful”. However, it can be conclusively branded
as unlawful only if it is clear that it cannot be justified in terms of the criteria for unlawfulness
which will be discussed below.
4 Overcoming the confusion: “unlawful” means “unjustified” The confusion may be
overcome if one keeps in mind that the enquiry into “unlawfulness” is in fact an enquiry
aimed at establishing whether there is an absence of something – namely justification for the
conduct complying with the definitional elements. The enquiry into whether conduct is unlawful therefore always bears a negative character. Another way of overcoming possible confusion would be by using the terms “unjustified” or “without justification” as synonyms for
“unlawful”, because conduct complying with the definitional elements is unlawful if it cannot
be justified.
5 Unlawfulness and wrongdoing “Wrongdoing” is the umbrella concept which comprises
both the requirement of compliance with the definitional elements and unlawfulness; put differently, it is the unlawful fulfilment of the definitional elements of the crime.
6 Act is either lawful or unlawful The concept of unlawfulness embraces a negative or
disapproving judgment by the legal order of the act. The law either approves or disapproves of
the act. An act is therefore either lawful or unlawful. There is no third possibility: unlawfulness
cannot be graded.2 Furthermore, only human conduct can be unlawful. Acts or events such as a
hurricane, a flood or an attack by an animal cannot be unlawful. “Unlawful” is an adjective,
the noun of which is always a voluntary human act or omission.
________________________
1
2
Pretorius 1975 2 SA 85 (SWA).
Maurach-Zipf ch 24 par 16; Van der Westhuizen 425.
UNLAWFULNESS (JUSTIFICATION)
81
7 Grounds of justification The next important question which arises is: When is conduct
which corresponds to the definitional elements nevertheless not unlawful?
There are a number of cases or situations, well known in daily practice, where an act which
corresponds to the definitional elements is nevertheless not regarded as unlawful. Unlawfulness is excluded because of the presence of grounds of justification. Some well-known
grounds of justification are private defence (which includes self-defence), necessity, consent
and official capacity. Later in this section the grounds of justification will be discussed one by
one.
At this point it is tempting to define unlawfulness simply as “the absence of a ground of
justification”. However, such a purely negative definition of unlawfulness is not acceptable, for
two reasons in particular. Firstly, all writers on criminal law agree that there is not a limited
number (numerus clausus) of grounds of justification. If there is not, how is one to determine
the lawfulness or unlawfulness of conduct which does not fall within the ambit of one of the
familiar grounds of justification? Secondly, it should be remembered that each ground of
justification has its limits. Where an act exceeds these limits it is unlawful. What is the criterion for determining the limits of the grounds of justification?
8 “Unlawful” means “contrary to the community’s perception of justice or the legal convictions of the community” Writers on criminal law have proposed different criteria to
determine the material contents of unlawfulness.3 Among the criteria suggested are that unlawfulness consists of the following: a violation of certain legally protected interests or values;
conduct which does not accord with the boni mores (literally “good morals”); conduct which
violates the community’s perception of justice or equity; conduct which is at variance with
public or legal policy; conduct which is contrary to the legal notions or the legal convictions
of society; conduct which is contrary to the requirement of objective reasonableness; conduct
which causes more harm than benefit; or conduct which is not “socially adequate”.
Most of the above viewpoints are reconcilable. Whether one speaks of the one or the other is
a matter of a choice of words rather than the description of conflicting viewpoints. It is submitted that the most acceptable viewpoint is the one according to which unlawfulness consists
in conduct which is contrary to the community’s perception of justice or with the legal convictions of society.4 It is, of course, a vague criterion, yet the same objection can be lodged
against all the other criteria mentioned above. It is simply impossible to formulate such a
general concept or criterion in more concrete terms.
________________________
3
4
On the material contents of unlawfulness, see I 1976 1 SA 781 (RA) 788–789; Clarke v Hurst 1992 4 SA
630 (D) 652–653; Fourie 2001 2 SACR 674 (C); Van der Westhuizen 371 ff, especially 452–496; Van der
Westhuizen 1984 De Jure 369 373–378; Bertelsmann 1982 THRHR 412 414 ff; Robinson (1982) 82
Columbia Law Review 82, especially 203, 213–219; Jescheck and Weigend 233 ff; Schönke-Schröder
n 45–50 ad s 13; Maurach-Zipf ch 24 par 20 ff; Roxin 596 ff; Hazewinkel-Suringa-Remmelink 343 ff; Eser
in Eser and Fletcher 1 47–50; the articles by Hassemer, Roxin and Lenckner in Eser and Fletcher 1 175
ff, 230 ff and 493 ff.
I 1976 1 SA 781 (RA) 788; Robson 1991 3 SA 322 (W) 333E; Clarke v Hurst supra 653B, 659B–C;
Fourie supra 681a–b; Engelbrecht 2005 2 SACR 41 (W) pars 22, 227. Customary criminal law recognises certain grounds of justification not found in the general criminal law. Institutional action may exclude unlawfulness (Prinsloo 174; Botha 14). An institution is a “cultural stereotype involving prescribed
action”, and where this action is complied with, X’s conduct is lawful (Myburgh 30). Examples of institutions include games; equipping oneself with material proof of a delict; cleansing ceremonies; maintenance
of discipline; and circumcision (Myburgh 30; Botha 14). Satisfaction is a further justification ground,
which relates to certain situations in customary law where X may exercise self-help lawfully in protecting
his rights (Prinsloo 174; Botha 13; Myburgh 20). These include assault of a thief, rapist, kidnapper or
adulterer who has been caught in flagrante delicto – Prinsloo 174. The self-help must take place during,
or immediately after, the commission of the offending act (Myburgh 23) and must not exceed the limits of
satisfaction (ibid 21).
82
SNYMAN’S CRIMINAL LAW
The contents of the Bill of Rights in chapter 2 of the Constitution must obviously play an
important role in deciding whether conduct is in conflict with public policy or the community’s perception of justice and therefore unlawful. The values reflected in the Constitution, such
as “human dignity, the achievement of equality and the advancement of human rights and
freedoms”5 are of crucial importance in deciding this issue.6
The legal or moral convictions of society and an individual often coincide, but not always.
What must be considered when deciding whether conduct is unlawful are not moral convictions, but legal convictions.
One must always first establish whether an act which accords with the definitional elements
is not perhaps justified because the legal convictions of society deem the act, committed in
those particular circumstances, in fact to be lawful. The act is then not unlawful. The grounds
of justification must be seen as practical aids in the determination of unlawfulness. They
merely represent the situations which are most often encountered in practice and which have
therefore come to be known as easily recognisable grounds for the exclusion of unlawfulness.
They do not cover the whole field of the subject of this discussion, namely the demarcation of
lawful and unlawful conduct.
The following is an imaginary example of a situation where X’s act, which at first sight
seems to “break the law”, is in fact not unlawful, despite the fact that it does not fall under one
of the recognised grounds of justification (which will be discussed below): X is the owner of
an attractive guest house next to a tarred road. The success of her business depends upon the
travelling public being able to reach her property via the tarred road. Over the years the provincial authorities responsible for keeping the road in good repair neglect their duties, with the
result that the road becomes near to impassable. X’s complains and asks the authorities to
repair the road, but the request falls on deaf ears. At last she and people in her employ break
the existing pieces of tar, remove them and retar the impassable piece or road. As a result of
her actions she is charged with the crime of malicious injury to property, in that she has
destroyed parts of the road belonging to the provincial authority. She can then successfully
rely on a plea that her conduct was lawful. It accorded with the community’s perception of
justice or the legal convictions of the community. It caused more benefit to society than any
conceivable harm, and was therefore “socially adequate”.
9 “Unlawful” does not mean “contrary to definitional elements of the crime” It was
emphasised above that the mere fact that the act accords with the definitional elements does
not necessarily mean that it is also unlawful. It is therefore incorrect to define unlawfulness
merely as an infringement of a criminal-law provision or as compliance with the definition of
the crime. Such a statement confuses the unlawfulness with the definitional elements.
The definitional elements contain no references to grounds of justification. If the legislature
creates a crime, it usually merely stipulates that any person who commits a certain type of act
in certain circumstances (such as possessing a certain type of drug without permission, driving
a vehicle recklessly on a public road, or pointing a firearm at somebody else) commits a crime.
Normally the legislature does not add words such as “unless the accused acted in self-defence,
necessity, an official capacity or in obedience to orders”. Nevertheless it is generally recognized
that no court will convict X of such statutory offences if she in fact acted in private defence
(which includes self-defence) in a situation of emergency (necessity) or in an official capacity
– to mention just some of the recognised grounds of justification. Why would a court not convict X in these circumstances? After all, her conduct falls within the description of the conduct
proscribed in the statute. The reason is that the court is not bound to consider exclusively the
requirements contained in the “letter of the law”, but also applies rules or principles that go
________________________
5
6
See s 1 of the Constitution, 1996.
Engelbrecht 2005 2 SACR 41 (W) par 332.
UNLAWFULNESS (JUSTIFICATION)
83
beyond the definitional elements or “letter of the law”. These rules relate to unlawfulness, for
the concept of unlawfulness is based upon values which go beyond the rules or requirements
expressed in the definitional elements.
Conduct which is, according to general notions of society, completely acceptable, does not
require any justification. That which is justified must necessarily be conduct which is recognisable as a violation of a norm. One can identify the violation of a norm by having regard to
the definitional elements of the applicable crime.
10 Subjective considerations also relevant in establishing unlawfulness It is sometimes
alleged in South African legal literature that the test to determine unlawfulness is objective
and that X’s intention therefore does not come into the picture when determining unlawfulness
(or wrongdoing).7 This view is incorrect. It was pointed out above8 that X’s will (colourless
intention) forms part of the definitional elements; the latter comprises both objective and
subjective factors. The concept of unlawfulness is an evaluation of the act which corresponds
to the definitional elements. Since the latter contains both objective and subjective elements, it
follows that the former must also be coloured by subjective factors. In order to determine
whether an act is unlawful, it is necessary not merely to establish that, viewed from the outside
(ie, objectively), the act is in conflict with the legal order, but also to consider X’s will or intention.
The presence of subjective factors in wrongdoing (unlawful act) is evidenced not merely by
their presence in the definitional elements, but also by the subjective factors which must be
taken into consideration in order to determine whether there is a ground of justification. A
person who relies on a ground of justification must be aware of the circumstances which
render her conduct lawful. She must consciously act lawfully. If the circumstances justifying
her conduct are objectively present but she is not subjectively conscious of their existence, and
her conduct is aimed at acting outside the justificatory circumstances, her conduct is unlawful.
In short, X’s act is justified not merely by objective, but also by subjective factors.9
________________________
7
8
9
Goliath 1972 3 SA 1 (A) 11B–C; Ex parte Minister van Justisie: in re S v SAUK 1992 4 SA 804 (A)
808F–G.
Supra III A 7–8.
Fletcher 557: “The consensus of Western legal systems is that actors may avail themselves of justifications only if they act with a justificatory intent”; 564: “the act of ‘exercising’ or ‘acting under’ a privilege
[a ground of justification] presupposes knowledge of the justifying circumstances”. See also Wessels ch 8
par 275–280; Maurach-Zipf ch 25 par 24 ff; Roxin ch 14 par 94–97; Jescheck 294 ff; Mousourakis 1998
Stell LR 165 173. The following examples illustrate this principle:
(a) Y, a medical doctor, on the pretext that this amounts to necessary medical treatment, decides to
murder X by injecting air into her veins. Just as Y is about to insert the point of the needle into X’s
body, X, who is unaware of Y’s intention, decides to assault Y. Only afterwards does X discover
that if she had not assaulted Y at that particular moment, Y would have killed her. In such a case
X’s conduct is unlawful; on a charge of assault she cannot rely on private defence as a justification
for her conduct. She had no intention of defending herself against an unlawful assault. There is no
such thing as unconscious, fortuitous or accidental private defence. X must therefore intend to act
in private defence. See infra IV B 4 (d) and the authorities referred to there.
(b) A person who relies on necessity as a ground of justification must be conscious of the fact that an
emergency exists, and that she is therefore acting in necessity. If X throws a brick through the window of Y’s house in order to break into it, and it later transpires that by so doing she has saved Y
and her family, who were sleeping in a room filled with poisonous gas, from certain death, X cannot rely on necessity as a defence. See infra IV C 6 ( f ) and the authorities referred to there.
(c) The reason why the person who acts on the grounds of presumed consent (spontaneous agent or
negotiorum gestor) does not act unlawfully is to be found in her intention. Eg, X moves her neighbour Y’s furniture to her own house, without Y’s consent. This would normally be theft, but if X
moves the furniture in order to save it from flood waters which are threatening Y’s house while she
is away on holiday, her conduct is lawful. See infra IV E 3.
[continued]
84
SNYMAN’S CRIMINAL LAW
11 Difference between unlawfulness and culpability From the foregoing it is clear that to
describe unlawfulness as “objective” and culpability as “subjective” is misleading and confusing. If one must employ the sometimes ambiguous terms “objective” and “subjective” in
describing the difference between unlawfulness and culpability, the difference, in my opinion,
is best described as follows: Unlawfulness is “objective” in the sense that the act is judged in
accordance with a generally applied criterion, namely the legal provisions which are directed
at all people on an equal basis, that is, without differentiating between, for example, children,
adults, mentally disordered people, mentally healthy people, blind people and mute people. On
the other hand, what is judged according to this objective (generally applicable) criterion,
namely the human act corresponding to the definitional elements, contains both external
(objective) and internal (subjective) factors. Having said this, the presence of a particular
subjective disposition remains an objective fact.
Furthermore, as far as the general criterion for unlawfulness is concerned, it must be remembered that just as an ambulance’s screaming siren is addressed to everybody, even though
some people may be deaf, or mentally disordered, or be children, so the provisions of the law
apply to all persons regardless of their individual characteristics. This is the reason why it is
equally unlawful for a rich and a poor person to commit theft, and why it is just as unlawful for
a psychopath who finds it very difficult to restrain his sexual desires as it is for a normal
person to commit a sexual crime. All acts, no matter by whom committed, which are contrary
to the material content of the law are therefore unlawful. This means that even children and
mentally disordered persons act unlawfully if their conduct is contrary to the law.10 It is only
when one comes to the question of culpability that attention is paid to the perpetrator as a
person; to her individual aptitudes, talents, weaknesses and insight.11 In short, unlawfulness
may be described as a judgment or an evaluation of the act, and culpability as a judgment or
evaluation of the perpetrator.
12 Erroneous belief in the existence of ground of justification: conduct remains unlawful The subjective factors which have to be taken into consideration when deciding whether
an act is lawful were emphasised above. However, just as it is wrong to see unlawfulness as
consisting of merely objective (“external”) factors, it is similarly wrong to place all the emphasis on subjective factors and to forget about the objective ones. No ground of justification
can exist in the absence of objective factors, and for this reason X’s conduct remains unlawful
if she subjectively thinks that there is a ground of justification whereas in fact there is none. A
so-called “putative ground of justification” is therefore in fact no ground of justification. A
putative ground of justification is one that does not legally exist but which X wrongly believes
to exist. It “exists” in X’s imagination only. X mistakenly believes that her conduct is covered
by a ground of justification.
The following example illustrates this principle: Y wants to play a practical joke on X and
aims a toy pistol at her. X thinks that Y is threatening her with a real pistol and in turn fires at
Y, killing her. X’s act is unlawful because there is no unlawful attack upon her. She can,
however, rely on mistake (absence of intention) as a defence.
________________________
(d)
In I 1976 1 SA 781 (RA) the court held that to peep through a window at somebody else undressing, is not unlawful if it is done with the sole and bona fide intention of obtaining evidence of adultery, in order to use such evidence in a later suit of divorce.
10 Williams Textbook 502; Jescheck and Weigend 236–238; Van der Westhuizen 422.
11 Fletcher 458, 761–762: “Claims of justification lend themselves to universalisation. That the doing is
objectively right (or at least not wrongful) means that anyone is licensed to do it . . . Excuses, in contrast,
are always personal to the actor”. See also Le Roux 1996 Obiter 247 256; Jesheck and Weigend 244;
Schönke-Schröder n 48 ad s 13; Eser in Eser and Fletcher 1 26 ff, especially 61; Robinson 1982 Columbia Law Review 199 203, 213; Fletcher 1985 Harvard Law Review 949; Fletcher 1974 Southern California Law Review 1269 1305.
UNLAWFULNESS (JUSTIFICATION)
85
13 Proving unlawfulness: onus of proof In terms of the rules relating to the law of evidence the state (prosecution) bears the onus of proving beyond reasonable doubt that X’s conduct not only corresponded to the definitional elements, but also that it was unlawful. This
means that if in the course of a trial the question arises whether X’s conduct is covered by a
ground of justification the onus is on the state to prove that her conduct cannot be justified.
B PRIVATE DEFENCE
1 Definition A person acts in private defence, and her act is therefore lawful, if she uses
force to repel an unlawful attack which has commenced, or is imminently threatening,
upon her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided the defensive act is necessary to protect the interest
threatened, is directed against the attacker, and is reasonably proportionate to the attack.12
2 General The first ground of justification, private defence, has ancient roots. It can rightly
be alleged that this ground of justification has no history, because it exists from the beginning
of time. In the course of history it has therefore not gained its place, but merely maintained it.
Natural justice dictates that every person has a right to defend herself against an unlawful
attack.13 In daily parlance this ground of justification is often referred to as “self-defence”, but
this description is too narrow, since it is not only persons who defend themselves but also
those who defend others who can rely upon this ground of justification.
There are two rationes or theories for the existence of private defence. The first is the protection theory, which emphasises each person’s right to defend oneself or another against an
unlawful attack. The second is the upholding-of- justice theory.14 The idea underlying this
theory is that people acting in private defence perform acts whereby they assist in upholding
the legal order. Private defence is meant to prevent justice from yielding to injustice, because
private defence comes into play only in situations in which there is an unlawful attack. In the
primitive societies of the past, where there was no organised police force to uphold the law,
the right to private defence played a very important role. On the emergence of an organised
state authority the field of operation of private defence became more restricted, so that today it
can only be applied in certain defined circumstances. It stands to reason that it is impossible
for the state authorities to protect the individual at all times against unlawful attack, and for
that reason every individual today still has the right to “take the law into her own hands”, so to
speak, in private defence, and temporarily to act on behalf of the state authority in order to
uphold the law.15
For the purposes of classification of the requirements of the defence it is convenient to divide the requirements of private defence into two groups. The first comprises the requirements
with which the attack, against which a person acts in private defence, must comply; the second, the requirements with which the defence must comply.
________________________
12
Engelbrecht 2005 2 SACR 41 (W) par 228; Steyn 2010 1 SACR 411 (SCA) par 16. In customary law,
defence may operate as a ground of justification to defend any right under attack (Myburgh 14–16; Labuschagne 1993 TRW 133) and may even kill in defence of person or property (Myburgh 14; Botha 12).
13 D 9 2 4; D 9.2.45.4; D 16.1 27. This right is also explicitly recognised in s 2(2)(a) of the European
Convention on Human Rights as well as s 51 of the Charter of the United Nations.
14 On the two rationes underlying private defence, see Snyman 2004 SACJ 178.
15 As Horder 130 points out, while a well-regulated society provides a general protection, since it cannot
guarantee protection against a sudden attack, the criminal law cannot protect the lifestyle autonomy of the
individual if it does not provide protection in such an emergency situation.
86
SNYMAN’S CRIMINAL LAW
3 Requirements of the attack
(a) The attack must be unlawful 16 A person cannot act in private defence against lawful
conduct. For this reason a person acts unlawfully if she attacks a police officer who is authorised to arrest a person or is authorised by a warrant to search a house. If the police officer is
not authorised by law to perform a particular act, or if she exceeds the limits of her authority,
she may be resisted.17
Private defence against private defence is not possible, but private defence against an act in
which the limits of private defence are exceeded is possible, because the latter act is then
unlawful. For example, X assaults Y lightly by trampling on her (Y’s) foot. Y reacts by
attacking X with an axe. Since Y’s act is out of proportion to Y’s initial attack on her, her
(Y’s) act is unlawful. X may then act in private defence against this attack. X may therefore
rely on private defence even if she (X) was the original aggressor.
X cannot rely on private defence if she kills Y in the course of a pre-arranged duel. An example of such a case is Jansen.18 X and Y decided to settle their differences by a knife duel.
During the fight Y first stabbed X, and then X stabbed Y in the heart, killing him. The court
held, quite correctly, that X could not rely on private defence, and convicted him of murder.
X’s averting of the blow was merely part of the execution of an unlawful attack which he had
planned beforehand.
An unlawful attack presupposes a voluntary human act. Involuntary muscular movements
by Y therefore do not qualify as an unlawful attack. If X directs her attack against human
conduct which is involuntary, as where Y walks in her sleep, she does not act in private
defence, but may rely on the ground of justification known as necessity.
As the law does not address itself to animals, and animals are therefore not subject to the
law, they cannot act unlawfully. Therefore a person does not act in private defence if she
defends herself against an attack by an animal, but here she can rely on the ground of justification known as necessity.19 If, on the other hand, a person uses an animal as an instrument of
attack, the person defending herself does act in private defence, because here there is an
unlawful attack by a human being.
There are three conditions with which the requirement presently under discussion need not
comply. They are the following:
Firstly, the assault need not be committed culpably. It is therefore also possible to act in
private defence against somebody who lacks criminal capacity,20 such as a mentally disordered person,21 a child, or somebody who acts in error. For example, Y arrests X, while under
the impression that she is entitled to do so. Y is in fact not entitled to do so. Y’s act, although
not committed culpably, is unlawful and X can act in private defence against it.
Secondly, the attack need not be directed at the defender. X may equally act in private defence to protect a third person Z (somebody other than the attacker), even if there is no family
________________________
16
17
18
19
20
21
Goliath 1972 3 SA 1 (A) 10; Kibi 1978 4 SA 173 (E) 180; Snyders v Louw 2009 2 SACR 463 (C) par 11;
Papu 2015 2 SACR 313 (ECB) par 10.
Moloy 1953 3 SA 659 (T) 661; Folkus 1954 3 SA 442 (SWA) 445.
Jansen 1983 3 SA 534 (NC).
Infra IV C. In Nkhumeleni 1986 3 SA 105 (V) it was held that if X assaults Y, and Y’s dog spontaneously
comes to his master’s assistance and attacks X, the dog’s conduct, like that of its master, is lawful and X
cannot then claim that his stabbing of the dog (in order to defend himself) was justified by necessity. It
would perhaps have been more correct to say that the dog’s conduct was merely an extension of his master’s lawful conduct, or an instrument in his hands.
Goliath 1972 3 SA 1 (A) 30A.
K 1956 3 SA 353 (A).
UNLAWFULNESS (JUSTIFICATION)
87
or protective relationship between X and Z.22 However, there is no private defence if Z does
not wish to be helped and this wish of hers is recognisable to X.23
Thirdly, the attack need not necessarily consist in a positive act (commissio), although in
fact it nearly always does. Although unlikely to occur often, an omission (omissio) ought also
to qualify as an “attack”, provided the other requirements of private defence are present. An
example in this respect is that of the convict who assaults prison warders and escapes when
her term of imprisonment has expired but she has not been released.
In Engelbrecht,24 a case in which X alleged that she had killed Y in private defence, the trial
judge held that Y’s attack need not necessarily be physical in nature, but that it may also take
the form of psychological and emotional abuse, as when a wife is emotionally harassed by her
husband over a prolonged period of time. However, the two assessors in this case did not
agree with the judge that X, who had killed her husband after being abused by him for a long
time, acted in private defence. It is submitted that the trial judge in this case bent the rules of
private defence too far, that her interpretation of the law was incorrect and that the assessors’
view of the matter was correct. To view, in the words of the trial judge, “emotional abuse,
degradation of life, diminution of dignity and threats to commit any such acts” by Y as an
unlawful attack, giving X the right to kill Y, will result in the rules relating to private defence
becoming too vague, and lead to misuse of private defence as a ground of justification. It is
submitted that the legal convictions of society do not allow a wife who is abused by her
husband (as happened in this case) to smother her husband with a plastic bag while he was
sleeping – especially not if the evidence shows (as the assessors indeed found) that there were
other less lethal ways in which X could have escaped Y’s abuse.
(b) The attack must be directed at an interest which legally deserves to be protected Most
often a person acts in private defence in protection of her life or bodily integrity, but in principle there is no reason why X cannot act in private defence in protection of other legal interests
as well. The courts have accordingly recognised private defence in protection of property,25
dignity,26 freedom of movement (prevention of unlawful arrest),27 the private use of one’s own
property (prevention of trespassing onto property),28 and sexual integrity (prevention of rape),29
as well as private defence in order to prevent arson30 or crimen iniuria,31 but not private defence against an attempt to gain access to and control of a child who was in the custody of a
divorced parent.32
________________________
22
23
24
25
26
27
28
29
30
31
32
Patel 1959 3 SA 121 (A) 123; Mokoena 1976 4 SA 162 (O) 163.
Schönke-Schröder n 25 ad s 32; Maurach-Zipf ch 26 pars 50–54. Care should be taken not to deprive
private defence of its character by granting every individual the right to play policeman. Thus one cannot
by acting in private defence protect society as a whole. The self-appointed protector of morals who arrogates to herself the right to confiscate “immoral” magazines in order to “protect” others who may read
them cannot rely on private defence.
2005 2 SACR 41 (W) par 344.
Ex parte die Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A) (in later footnotes reference to
this important case will simply be to “Van Wyk”); Teixeira 1980 3 SA 755 (A) 765A; Mogohlwane 1982 2
SA 587 (T).
Van Vuuren 1961 3 SA 305 (E).
Kleyn 1937 CPD 288; Karvie 1945 TPD 159.
Thomas 1928 EDL 401; Botes 1966 3 SA 606 (O).
Mokoena 1976 4 SA 162 (O), and cf Van Wyk supra 497A–B.
Cf Van Wyk supra 496E, 498A, 504A.
Cf Ndlangisa 1969 4 SA 324 (E).
Kamffer 1965 3 SA 96 (T) 100. It is submitted that the trial judge in Engelbrecht 2005 2 SACR 41 (W)
par 345 went too far when she declared that even “quality of life, her home, her emotional and psychological wellbeing, her freedom as well as those interests of her child(ren)” are protected by the right to private
defence. In protection of, among others, these interests, X had killed her husband. For more particulars of
this case, see the text supra par 3(a).
88
SNYMAN’S CRIMINAL LAW
(c) The attack must be imminent but not yet completed 33 X may not attack Y merely because she expects Y to attack her at some time in the future. She may attack Y only if there is
an attack or immediate threat of attack by Y against her; in this case it is, of course, not necessary for her to wait for Y’s first blow – she may defend herself by attacking Y, with the precise object of averting that first blow.34
Private defence is not a means of exercising vengeance, neither is it a form of punishment.
For this reason X acts unlawfully if she attacks Y when Y’s attack upon her is already something of the past.35
When automatic defence mechanisms are set up (such as a shotgun which is rigged in such a
way that it will go off in a shop during the night if a thief enters it), there is not yet a threatened attack at the time when they are set up, but the law recognises that to set up and trigger
such mechanisms may constitute valid private defence in certain narrowly defined circumstances.36 Their setting up must be viewed as a precautionary measure or as a preparation for
an act of defence. The latter only takes place when the thief sets foot in the trap.
4 Requirements of the defence
(a) It must be directed against the attacker If Y attacks X, X cannot then direct her act in
private defence against Z. However, an attack on Z by X may in certain circumstances be
justified by necessity, as will be explained below.37
(b) The defensive act must be essential In order to protect the interest threatened.38 The execution of the defensive act must be the only way in which the attacked party can avert the
threat to her rights or interests. If, on the termination of a lease, the obstinate lessee refuses to
leave the house, the lessor is not entitled to seize her by the throat and eject her from the
premises. She can protect her right and interests by availing herself of the ordinary legal
remedies, which are to obtain an ejection order from a court and possibly also to claim damages. The basic idea underlying private defence is that a person is allowed to “take the law into
her own hands”, as it were, only if the ordinary legal remedies do not afford her effective
protection.39 She is not allowed to arrogate to herself the functions of a judge and a sheriff. On
the other hand, a threatened person need not acquiesce merely because she will be able to
claim damages afterwards. The present rule merely means that the threatened person may not
summarily take the law into her own hands if the usual legal remedies afford her adequate
protection.
________________________
33
Van Wyk supra 504E–F; Mokgiba 1999 1 SACR 534 (O) 550; Govender v Minister of Safety and Security
2009 2 SACR 87 (D&C). The same requirement applies in customary law – Prinsloo 174.
34 Ngubane v Chief Executive Director of Emergency Services, Ethekwini Metropolitan Service 2013 1
SACR 48 (KZD) par 27. As Justice Holmes stated in the US Supreme Court case of Brown v United
States 266 US 335 (1921) 343: “Detached reflection cannot be demanded in the presence of an uplifted
knife”. Or indeed, a raised firearm, as in Ngubane.
35 Mogohlwane 1982 2 SA 587 (T). It is submitted that the court in Engelbrecht 2005 2 SACR 41 (W) par
349 went too far when it declared that “where abuse [by Y, the husband, on his wife, X] is frequent and
regular such that it can be termed a ‘pattern’ or a ‘cycle’ of abuse then it would seem that the requirement
of ‘imminence’ should extend to encompass abuse which is ‘inevitable’”. In this case X killed her husband Y, who had subjected X to long-term abuse, while he was sleeping. It is submitted that Y’s abuse of
X cannot be construed as an immediate threat upon X.
36 Van Wyk supra 498.
37 Infra IV C.
38 De Wet 77. By way of contrast, with regard to the justification ground of necessity, the act of necessity
must be “necessary”, which may encompass a range of options. See in this regard Alfeus 1979 3 SA 145
(A) 151H, and Malan 1998 2 SACR 143 (C) 145H–I, where the elements of necessity as set by Burchell
and Hunt are cited with approval. See further infra IV C 6 (g).
39 Engelbrecht 2005 2 SACR 41 (W) par 351.
UNLAWFULNESS (JUSTIFICATION)
89
Excursus: Is there a duty to flee? A question that arises in this connection is whether the
person who is being attacked must flee if she can do so in order to ward off the attack. Thus
far the courts have not yet unequivocally decided whether or not such a duty to flee exists.
There are a number of instances in which it can with reasonable certainty be accepted that
there is no duty on the attacked party (X) to flee. These instances are the following:
Firstly, it would seem that if X can ward off the attack by merely injuring Y instead of killing her, she may do so. It is only in cases where X kills Y that there is uncertainty in our law
whether or not there is a duty on X to flee.40
Secondly, our courts recognise the principle that if it is dangerous for X to flee in the sense
that she would then expose herself to, for example, a stab or a shot in the back, she need not
flee, but may act proactively and put her attacker out of action.41 The law does not expect a
person to gamble with her life by turning her back on her attacker and merely hoping that she
will not be hit by a bullet or be stabbed in the back with a knife by the attacker.42 It is the
attacker, who unlawfully and intentionally launches the attack, who carries the risk of injury
or death, and not the attacked party.
Thirdly, the law does not expect X to flee from her own house if she is attacked there.43 Her
house or place of residence is her last refuge – her “castle” – where she may protect herself
against any unlawful attack.
Fourthly, it is not expected of a law enforcement officer, such as a police officer, to flee if
she is being attacked while lawfully performing her duties.44
However, there is much to be said for the view that if X is attacked by a person lacking
criminal capacity (such as a mentally ill person, a child or an extremely intoxicated person),
and she can escape danger by fleeing, she should do so, because in such cases it is not disgraceful to flee, and the maintenance of law is not thereby endangered.45
Further, the question arises whether X should flee from her attacker in cases not falling under
one of the above-mentioned categories, such as when X is attacked by Y when both she and Y
find themselves in a narrow alley and both of them carry weapons.
Although the courts have not yet unequivocally held that in such circumstances there is
indeed a duty on X to flee, there are indications in our case law that create the impression that
the courts in fact expect her to flee.46 However, these dicta are somewhat equivocal.47
________________________
40
41
42
43
44
45
46
47
La Fave 547–548: “It seems everywhere agreed that one who can safely retreat need not do so before
using non-deadly force.”
Zikalala 1953 2 SA 568 (A) 573; Teixeira 1980 3 SA 755 (A) 765 (C); Ntsomi v Minister of Law and
Order 1990 1 SA 512 (C) 527; Mothoana 1992 2 SACR 383 (O) 385; Snyders v Louw 2009 2 SACR 463
(C) par 25; Steyn 2010 2 SACR 411 (SCA) par 24.
This view was endorsed by the Supreme Court of Appeal in Steyn 2010 1 SACR 411 (SCA) par 21. See
also Hoctor 2010 SACJ 125 127 in his discussion of this judgment, and Ngubane v Chief Executive Director of Emergency Services, Ethekwini Metropolitan Services 2013 1 SACR 48 (KZD) par 27.
Engelbrecht 2005 2 SACR 41 (W) par 354; S 3.04(2)(b)(iii) of the American Model Penal Code.
Ntsomi v Minister of Law and Order supra 528, 530.
Snyman 2004 SACJ 178 186; Jescheck and Weigend 341.
Zikalala 1953 2 SA 568 (A) 571–572; K 1956 3 SA 353 (A) 358H; Patel 1959 3 SA 121 (A) 123F;
Mnguni 1966 3 SA 776 (T) 779A; Dougherty 2003 2 SACR 36 (W) 50.
In relation to the cases cited in the previous footnote, the Zikalala, K, and Patel cases cited a passage from
Gardiner and Lansdown which states that no one is expected to take flight to avoid attack, if flight does
not afford a safe way of escape. In the Mnguni case, the court took the view that flight was still a viable
possibility. The Dougherty decision is completely incorrect. It was a classic case of private defence, and
the court should have upheld X’s plea of private defence. Had X not shot Y, Y and his co-perpetrator
would, in all probability, have overpowered and killed X. To expect of X, as the court apparently did, to
turn his back on his attackers and run away, amounts to the court expecting of X to gamble with his life. X
was one man alone against two attackers. X was no longer young (he was 63), while Y and his coperpetrator were about 31 and 25 years of age. They had already shortly before attacked some of the other
[continued]
90
SNYMAN’S CRIMINAL LAW
It is submitted that there is no duty on the attacked party to flee.48 To recognise a duty to
flee is to deny the very essence of the present defence. Private defence deals with the defence
of the legal order, that is, the upholding of justice. Fleeing is no defence; it is a capitulation to
injustice. Why must justice yield to injustice? In private defence the attacked party (X) acts as
upholder of the law, since the state authority (police) is not present to protect her. Just as there
is no duty on a police officer to run away from a criminal, there is no duty on X to flee from a
person (Y) who unlawfully attacks her in circumstances where the police are not present to
protect her. A legal system such as ours, that expects of its subjects to respect and promote the
rule of law, cannot simultaneously expect of them to flee from an unlawful attack, since that
would amount to expecting of them to turn their backs on the rule of law in order to let the
rule of injustice carry the day. German criminal law theory, in which the concept of private
defence has been analysed in depth, does not recognise any duty on X to flee.49 Modern
authors on Anglo-American law likewise criticise the recognition of any duty to flee.50
(c) There must be a reasonable relationship between the attack and the defensive act It
stands to reason that there ought to be a certain balance between the attack and the defence.
After all, you may not shoot and kill another person who strikes you with only a fly-swatter. It
is not feasible to formulate the nature of the relationship which must exist between the attack
and the defence in precise, abstract terms. Whether this requirement for private defence has
been complied with is in practice more a question of fact than of law.51
A clearer picture of this requirement emerges if one considers the elements between which
there need not be a proportional relationship:
Firstly, there need not be a proportional relationship between the nature of the interest
threatened and the nature of the interest impaired.52 The attacked party may impair an interest
________________________
people at X’s party, and they did not approach X with any peaceable motive. When they came close to X,
he acted entirely reasonably by first firing a warning shot. It was only when Y was approximately 3,5 metres from X that X shot him. It would seem that the court was grasping at straws in an attempt to find reasons why X should not have shot Y, such as the far-fetched argument that X was not a trained shot, and
did not yet have any training in the use of firearms (44b). Since when may only people trained in the use
of firearms defend themselves in private defence? And what did Y’s clothing, that is, the fact that Y was
not wearing a shirt (50b) have to do with the question whether X was entitled to shoot Y in private defence? For an analysis and scathing criticism of this decision, see Snyman 2004 THRHR 325. An aspect of
Snyman’s criticism of this decision was quoted with approval in Engelbrecht 2005 2 SACR 41 (W) par
329, and described as “convincing”. The decision in Engelbrecht can in fact be construed as one in which
it was held that there was no duty on X to flee. See in particular pars 354–355. In customary criminal law,
it seems that it would not be required of X to flee in the face of a threat to a legal interest (Myburgh 15).
Labuschagne 1993 TRW 139 notes that violence may be used even to protect one’s honour, and thus flight
would not be necessary in the event of such a threat. Botha 12 states that flight is required if the attacker
can be evaded in this way.
48 For a more detailed discussion of the subject, see Snyman 2004 SACJ 178 184–187. The judgment in
Snyders v Louw 2009 2 SACR 463 (C) is largely compatible with the approach that there is no duty to
flee. See especially par 24–26. In this case Y tried to break into X’s car which was parked in front of his
house. X confronted Y with a firearm but Y continued his aggressive behaviour towards X. The court correctly rejected the argument that X should have fled into his house (par 25).
49 Jescheck and Weigend 343–344; Schönke-Schröder n 40 ad s 32; Roxin ch 15 par 2, 49; Jakobs 395.
50 Allen 194 remarks: “If there were a duty to retreat a person would never be able to use pre-emptive force.”
The American author Dressler 227 declares: “The retreat rule would have a counter-utilitarian effect; it
would embolden aggressors, and innocent people, if required to retreat, might be killed while fleeing.”
51 Trainor 2003 1 SACR 35 (SCA) 41h–i; Snyders v Louw supra 472–476. The difficulties in assessing this
requirement are exemplified in the Supreme Court of Appeal cases of Ngobeni [2014] ZASCA 59 and
Mkhize [2014] ZASCA 52, discussed by Hoctor 2014 SACJ 65. In customary law, while X may use as
much force as necessary (Prinsloo 173), the force used must not be excessive (Myburgh 15; Botha 12).
Labuschagne 1993 TRW 138, however, states that the proportionality requirement is not consistently
strictly applied.
52 Van Wyk 1967 1 SA 488 (A) 496–497.
UNLAWFULNESS (JUSTIFICATION)
91
of the assailant which differs in nature from that which she is defending. The following
examples illustrate this point: If Y threatens to deprive X of a possession belonging to X, X is
entitled to assault Y in private defence in order to protect her possession; this means that X
may, in order to protect her own property, impair an interest of Y which is not of a proprietary
nature, namely Y’s physical integrity. In Ex parte die Minister van Justisie: in re S v Van
Wyk53 the Appeal Court held that X may in extreme circumstances even kill Y in order to
protect her property. It is submitted that this judgment is compatible with the Bill of Rights in
the Constitution and therefore valid even today, provided, of course, that the other requirements for private defence are also complied with, such as that, the property must be of very
great value to X and that X must first have tried other, less harmful ways to ward off the
attack, to no avail.54 Furthermore, X may kill Y in private defence, not only if her life is
endangered by Y’s attack on her, but also in order to ward off serious bodily injury, provided,
of course, X cannot ward off the threat to her physical integrity in any other way than by
________________________
53
1967 1 SA 488 (A). In this case X, a shopkeeper, whose shop had been broken into repeatedly, took
extensive precautionary measures to safeguard his store, without success. At last, in desperation, he rigged
up a shotgun in such a way that a person breaking in would trigger it off if he entered by a certain window
or went behind the counter to take goods. One night an intruder broke in, set off the contrivance and received a fatal wound. On a charge of murder X the shopkeeper invoked private defence and the court upheld his defence. Some of the court’s most important findings were the following: Where both X’s
possessions and her life or limb are threatened by Y, Y may be killed, as where Y is a thief whom X
catches in her house during the night, and where it is clear that Y will offer resistance rather than leave the
house empty-handed (496E–H). However, one may also kill a thief who is running away with stolen
goods, provided this is the only way in which the goods can be retained (496–498). The court disposed of
the objection that there was a disproportionality between life and property by pointing out that it is not always practicable to weigh the nature of the interest threatened against the nature of the interest which is
actually impaired (496–497, 503–504). There must not be a less harmful method available to X of retaining her property (497–498). Eg, if she knows that she can recover the goods at a later stage, she may not
shoot (498A). In addition, she may shoot only if she has first issued a warning (498B–C, 505A, 510C–D)
where this is reasonably practicable. The protected possessions must also not be of trifling value (498A,
503H). The principles enunciated in Van Wyk were later applied in Mogohlwane 1982 2 SA 587 (T).
54 It is submitted that the decision is compatible with the Constitution, provided it is clear from the facts that
X’s act was really the ultima ratio – the very last alternative – to protect her property. X has, of course,
impaired Y’s right to life, but this impairment is reasonable and justifiable. It is always reasonable and
justifiable for someone whose rights are threatened by unlawful conduct, to ward off such a threat, if need
be by killing her assailant. The same considerations apply here as those set out in the text in support of the
rule that the law can never expect the attacked party to flee. Maré in Bill of Rights Compendium 2A–13 is
also of the opinion that the decision in Van Wyk is not in conflict with the Constitution, but Ally and
Viljoen 2003 SACJ 121 and apparently also Burchell and Milton 254 (“life must be prized above property,
and Van Wyk’s days are now numbered”) argue that the decision is incompatible with the Constitution. It
is submitted that this latter view is wrong. Consider the following example: in the course of a mass
demonstration, demonstrators decide to loot shops which happen to be near them. X is the owner of a jewellery shop. The contents of the shop constitute her whole life’s possessions. Demonstrators smash the
windows of her shop with iron bars, force the burglar proofing open, burst into the shop and start stealing
the goods. X warns them that she will shoot them if they continue, and also fires warning shots into the
air, all to no avail. If X is not allowed to kill a plunderer, it means that the law expects her to stand with
folded arms and look on as they rob her of all her life’s possessions. It also means that the plunderers have
a “right to steal” which is stronger than X’s right to protect her life’s property. Why must justice yield to
injustice? And if X in this situation may not kill the thief, must one then accept that a woman who is about
to be raped may also not kill her would-be rapist? (Quite apart from this, experience – the alarming murder rate – in this country has taught that the so-called “sacrosanct right to life” is more a chimera, an abstract theoretical concept, than a concrete instrument of protection for innocent citizens.) In German
criminal law theory it is generally accepted that, despite the protection of rights and values flowing directly or indirectly from the provisions of the German Grundgesetz as well as from s II of the European Convention of Human Rights, X does have the right in extreme circumstances to kill another in protection of
her property – Jesheck and Weigend 343; Baumann 323; Roxin 678–679; Wessels 97; Schönke-Schröder n
46–50 ad s 32; Kühl ch 7 par 118; Maurach-Zipf ch 26 par 31.
92
SNYMAN’S CRIMINAL LAW
killing Y.55 If Y threatens to rape a woman X, X may defend her chastity even by killing Y.56
The nature of the interest protected and the interest impaired may therefore be dissimilar.
However, this rule must be tempered by the qualification that in cases of extreme disproportion
between interests, reliance on private defence may be unsuccessful.57
Secondly, it is not required that there be a proportional relation between the weapons or
means used by the attacker and the weapons or means used by the attacked party. If the
person attacked may not defend herself with a different type of weapon from the one used by
the attacker, it follows that the attacker has the choice of weapon, and such rule would obviously be unacceptable.58 X may ward off an attack on her by Y by shooting and killing Y even
though Y has no weapon, because one person is capable of killing another merely by using her
hands. This is especially the case if Y is young and strong whereas X is physically relatively
weak.
Thirdly, it is not required that there be a precise proportional relation between the value or
extent of the injury inflicted or threatened to be inflicted by the attacker and the value or
extent of the injury inflicted by the defending party.59 The proportionality need not be precise;
it is sufficient if it is approximate. What an approximate proportionality is depends upon the
facts of each case. One does not, as a referee in a boxing match would do, count the exact
amount of blows executed by the attacked party and then compare it to the amount of blows
executed by the assailant. In short, precise retribution does not serve as a basis for deciding
whether a person can rely on private defence.60
It is submitted that the furthest one is entitled to generalise, is to require that there should be
a reasonable relationship between the attack and the defensive act, in the light of the particular
circumstances in which the events take place. In order to decide whether there was such a
reasonable relationship between attack and defence, the relative strength of the parties, their
sex and age, the means they have at their disposal, the nature of the threat, the value of the
interest threatened, and the persistence of the attack are all factors (among others) which must
be taken into consideration.61 One must consider the possible means or methods which the
defending party had at her disposal at the crucial moment. If she could have averted the attack
by resorting to conduct which was less harmful than that actually employed by her, and if she
inflicted injury or harm to the attacker which was unnecessary to overcome the threat, her
conduct does not comply with this requirement for private defence.62 If, for example, the
attacked party could have overcome the threat by using her fists or by kicking the assailant,
she may not use a knife, let alone a firearm. However, it is wrong to expect the attacked party,
by choosing a less dangerous method, to expose herself to any risks.63
________________________
55 Jackson 1963 2 SA 626 (A); K 1956 3 SA 353 (A) 359; T 1986 2 SA 112 (O) 128D–E.
56 Van Wyk supra 497A–B; Mokoena 1976 4 SA 162 (O) 163.
57 Van Wyk supra 498B.
58 Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 529C–D.
59 Van Wyk supra 496–497
60 Van Wyk supra 497A–B.
61 T 1986 2 SA 112 (O) 129; Trainor 2003 1 SACR 35 (SCA) 41–42; Steyn 2010 1 SACR 411 (SCA) par
19, discussed by Walker 2012 SACJ 84. It is submitted that the court in Engelbrecht 2005 2 SACR 41 (W)
par 357 went too far when it stated that a court should also take into consideration factors such as “gender
socialisation and experiences” (whatever this may mean) between the parties, “including power relations
on an economic, sexual, social, familial, employment and socio-religious level . . . the impact upon the
body, mind, heart, spirit of the victim”. Many of the factors mentioned by the court are too vague. Considerations such as the “mind, heart, spirit of the victim” unjustifiably drags subjective factors into an enquiry which is entirely objective. It would result in emotional people acquiring a right to kill where more
unemotional people do not have it.
62 Van Wyk 1967 1 SA 488 (A) 501A; Van Antwerpen 1976 3 SA 399 (T); Engelbrecht supra par 357.
63 Cf the discussion supra IV B 4(b) of the question whether there is a duty on X to flee.
UNLAWFULNESS (JUSTIFICATION)
93
Assume that X, sleeping in her home, is woken in the middle of the night by a burglar Y,
who approaches her room or that of a family member. May X summarily shoot Y in order to
kill her, or must she first ask Y to identify herself and state the purpose of her visit, in order to
decide what, objectively, the appropriate defensive measures would be in the circumstances?
Must she first try to arrest Y and then call the police? It is submitted that in such a situation X
is entitled summarily to resort to the extreme measure of shooting at Y. Even if subsequent
investigation reveals that Y was an unarmed or a physically weak person who could easily
have been overpowered by X, and who wanted to steal, say, only a cell phone, it is extremely
unlikely that any court would hold that X acted unlawfully in shooting at Y. A celebrated
phrase emanating from English law reads “a person’s home is her castle”. Experience tells us
that even a moment’s hesitation by X in such circumstances might be fatal to X. To deny X
the right to shoot in such circumstances is to require her to gamble with her life or that of the
other people in the house, and the law cannot expect this of her.64
(d ) The attacked person must be aware of the fact that she is acting in private defence65
According to this approach there is no such thing as unconscious or accidental private defence.
This requirement is of more than academic importance, for two reasons.
Firstly, it prevents private defence from being abused in situations which can be described
as “provoked private defence”. Example: X is looking for a pretext or an excuse to assault Y,
whom she dislikes. She now intentionally provokes Y, in order to make her lose her temper
and assault her (X). When this happens, X retaliates and attacks Y and then relies upon private
defence. This is not true private defence. X’s attack is unlawful, because X, who is really the
attacker, means not merely to defend herself, but to be the aggressor.66
Secondly, private defence should be excluded in cases where it is pure coincidence that the
act of defence is in fact directed at an unlawful attack. Example: X decides to kill Y, whom
she dislikes, and shoots and kills her while she is sitting in a bus full of passengers. Only
afterwards is it discovered that Y was an urban terrorist who was on the point of blowing up
the bus and all its passengers with a hand-grenade. If X had not killed her in time, she (X)
would have been killed herself in the explosion. X ought not to be allowed to rely on private
defence. X never intended to act in private defence because she was completely unaware of
Y’s aggressive intentions.
5 Test for private defence If X thinks that she is in danger, but she is not, or that someone
is attacking her unlawfully, but in fact the attack is lawful, the defensive measures she takes
cannot constitute private defence. This does not mean that X is then necessarily guilty of
murder or assault, as the case may be, because an unlawful act is not the only prerequisite for
________________________
64
Even if a court holds that X cannot rely on private defence because objectively there was a less harmful
way in which she could have overcome the danger, the court would in most cases refuse to convict X of
murder if she shot and killed Y, on the following ground: although X acted unlawfully, she lacked intention because she honestly believed that her life or that of her family members were in danger. This means
that there was no awareness of unlawfulness on her part and therefore no intention. For an explanation of
how awareness of unlawfulness forms part of intention, see infra V C 23.
65 Schönke-Schröder n 63 ad s 32; Jescheck and Weigend 342–343; Maurach-Zipf ch 26 par 27; Roxin ch 15
par 129 ff; Kühl ch 6 par 10 ff; Fletcher 559–560; Peters 214, who declares: “opzet ligt ook besloten in de
term weer van noodweer: men weert zich niet per ongeluk”. The moment one tries to formulate the defence of private defence in abstract terms, one finds that it is necessary to use a phrase denoting subjective
intention such as “in order to”. The requirement set out in the text has also been recognised by South African writers. See Van Oosten 1977 THRHR 90 93; Labuschagne 1979 SACC 271 273; 1985 De Jure 155
158; Badenhorst 174; Morkel and Alberts 1984 TRW 104 105. For a contrary view see De Wet 76; Robinson 1975 UCLA LR 266; and cf Braude 1903 ORC 67.
66 Smith and Hogan 280; Schönke-Schröder n 54 ad s 32; Maurach-Zipf ch 26 par 41 ff; Jescheck and
Weigend 346–347; Kühl ch 7 par 207 ff; Jakobs 403 ff.
94
SNYMAN’S CRIMINAL LAW
criminal liability. Culpability is also required and, as will be seen later,67 X’s mistake may well
exclude culpability, so that she will not be liable for the crime. This situation is known as
putative (or supposed) private defence and is, of course, not true private defence.
It is usually stated that the test of private defence is objective.68 This proposition is acceptable, provided that the role of this “objective test” is merely to distinguish between actual private defence and putative private defence, as explained immediately above. However, if by
“objective” is meant that X need not be aware of the fact that she is acting in private defence
(requirement (d) above of the requirements of the defence) such a so-called “objective test” is
unacceptable.
The courts sometimes state that, in order to determine whether X acted in private defence,
one should ask whether the reasonable person in the circumstances in which X found herself
would have acted in the same way (or, to put it differently, whether X reasonably believed
that she was in danger).69 Such an approach leads to the test of private defence (unlawfulness)
being confused with the test of negligence (where one similarly has to enquire how the reasonable person would have acted). It has been argued that the courts apply the reasonable person
test here merely in order to determine whether X’s conduct was reasonable in the sense that it
accorded with what is usually acceptable in society.70 If the criterion of the reasonable person
is employed merely as an aid, in order to assist in the determination of whether X’s conduct
was lawful or unlawful, there can be no criticism of such an approach. However, courts need
to warily guard against the ever-present danger of eliding the concepts of objective reasonableness and the reasonable person criterion as applied in the context of culpability.71 Ultimately, the test is not whether the judicially attributed characteristics of the reasonable person
have been met, but rather whether on an objective, diagnostic, ex post facto assessment X can
be said to have acted unlawfully.
At the same time, the courts often emphasise that in determining whether X’s conduct was
reasonable (in other words lawful), the judicial officer should not judge the events like an armchair critic, but should to the best of her ability endeavour to place herself in the shoes of the
attacked person at the critical moment, and keep in mind that such a person probably had only
a few seconds in which to make a decision which was of vital importance to her. The court
should then ask itself whether a reasonable person would also have acted in that way in those
circumstances. A person who suffers a sudden attack cannot always be expected to weigh up
all the advantages and disadvantages of her defensive act, and to act calmly.72
6 Exceeding the limits of private defence If the attacked party exceeds the limits of
private defence by causing more harm or injury to the attacker than is justified by the attack,
she acts unlawfully. She then becomes an attacker herself. In deciding whether X is then guilty
of a crime, and if so, which crime, one must distinguish between cases in which she had killed
Y and cases in which she had only injured Y.
(a) Cases in which X kills Y In order to determine whether X, who had exceeded the limits
of private defence, is guilty of murder, culpable homicide or perhaps not guilty of any crime,
one must simply apply the ordinary test to determine culpability (intention or negligence). The
________________________
67
68
Infra V C 14.
Ntuli 1975 1 SA 429 (A) 436; Motleleni 1976 1 SA 403 (A) 406C; De Oliveira 1993 2 SACR 59 (A) 63i;
Engelbrecht 2005 2 SACR 41 (W) par 327; Snyders v Louw 2009 2 SACR 463 (C) 474.
69 Patel 1959 3 SA 121 (A) 123; Motleleni 1976 1 SA 403 (A) 406C–D; Van Antwerpen 1976 3 SA 399 (T)
401D; De Oliveira supra 63i.
70 Steyn 2010 1 SACR 411 (SCA) par 18.
71 For an example of such confusion, see Dougherty supra par 39.
72 Patel supra 123; Ntuli 1975 1 SA 429 (A) 437 (point 7): “In applying these formulations to flesh and
blood facts, the Courts adopt a robust attitude, not seeking to measure with nice intellectual calipers the
precise bounds of legitimate self-defence”; Nyokong 1975 3 SA 792 (O) 794; Snyders v Louw supra par
26; Steyn supra par 24.
UNLAWFULNESS (JUSTIFICATION)
95
only difference between murder and culpable homicide is the form of culpability required for
each: intention in the case of murder and negligence in the case of culpable homicide.
The position in our law is as follows:
(1) If X (the party who was originally attacked) is aware of the fact that her conduct is unlawful (because it exceeds the bounds of private defence) and that it will result in Y’s death, or
if she subjectively foresees this possibility and reconciles herself to it, she acts with dolus
(intention accompanied by awareness of unlawfulness) and is guilty of murder.73
(2) If intention to kill as explained in the previous sentence is absent, X can nevertheless still
be guilty of culpable homicide if she ought reasonably to have foreseen that she might exceed the bounds of private defence and that she might kill the aggressor. She was then negligent in respect of the death.74
(3) If, subjectively, she did not foresee the possibility of death and it can also not be said that
she ought reasonably to have foreseen it, both intention and negligence in respect of death
are absent and she is not guilty of either murder or culpable homicide.75
It must be emphasised that the mere fact that X knew or foresaw that her act might result in
Y’s death, does not mean that she intended to kill (as this requirement is understood in the law)
and that she is therefore guilty of murder. As will be seen later in the discussion of intention,76
awareness of unlawfulness is an indispensable requirement of dolus (intention in the technical,
legal sense of the word). In ordinary cases where the bounds of private defence are exceeded
there can usually be no doubt that intention in the sense of a direction of the will (ie, “colourless intention,” or intention without an appreciation of the unlawful quality of the act) is
present. After all, X wishes to put the original aggressor out of action by killing her. What she
usually does not realise is that her conduct exceeds the bounds of private defence and that she
is acting unlawfully; she then has only a “colourless” intention to kill.
(b) Cases in which X only injures Y If in the course of exceeding the limits of private defence X does not kill Y but merely injures her, there are only two possibilities, namely that X
is guilty of assault, or that she is not guilty of any crime. The crime of assault can only be
committed intentionally. There is no such crime as negligent assault. If X subjectively knew or
foresaw the possibility that she might exceed the limits of private defence and in so doing
would or could injure Y, she had the necessary intention to assault and is guilty of assault. If
she did not foresee this possibility, the intention to assault is absent and she is not guilty.77
Mere negligence in respect of the injury does not render her guilty of any crime.
C NECESSITY
1 Definition A person acts in necessity, and her act is therefore lawful, if she acts in
protection of her own or somebody else’s life, bodily integrity, property or other legally
recognised interest which is endangered by a threat of harm which has commenced or is
imminent and which cannot be averted in another way, provided the person is not legally
compelled to endure the danger and the interest protected by the protective act is not out
of proportion to the interest infringed by the act. It is immaterial whether the threat of
harm takes the form of compulsion by a human being or emanates from a non-human
agency such as force of circumstance.
________________________
73
74
75
76
77
Ntuli 1975 1 SA 429 (A) (point 6 (ii)); De Oliveira 1993 2 SACR 59 (A) 65h–j.
Ntuli supra 436 (point 4), 437 (point 6 (i)); Ngomane 1979 3 SA 859 (A) 863–864; Naidoo 1997 1 SACR
62 (T) 68–69; De Oliveira supra 63i–64a; Dougherty 2003 2 SACR 36 (W) 47a–b.
Sataardien 1998 1 SACR 637 (C) 644.
Infra V C 23.
Ntuli supra 436–437 (point 5); Mokoena 1976 4 SA 162 (O) 163.
96
SNYMAN’S CRIMINAL LAW
2 Necessity and private defence The two grounds of justification known as necessity and
private defence are closely related to each other. In both cases X protects interests which are
of value to her, such as life, bodily integrity and property, against threatening danger. The
differences between these two grounds of justification are the following:
(1) Private defence always stems from and is always directed at an unlawful (human) attack;
necessity, on the other hand, can stem from either an unlawful human act or from chance
circumstances, such as acts of nature.
(2) Whereas in cases of private defence the act of defence is always directed at an unlawful
human attack, in cases of necessity it is directed at either the interests of another innocent
party or a mere legal provision.78
If somebody defends herself against an attack by an animal she acts in necessity, not in private
defence, since an animal does not act unlawfully.
Private defence is much more readily justified on ethical grounds, since there is always an
unlawful attack and the attacker simply gets what she deserves. On the other hand, to justify
necessity is more difficult. Here X finds herself in a situation in which she must choose
between two evils: she must either suffer personal harm, or break the law; and which she
should choose is often a debatable point. It is precisely for this reason that there must be strict
compliance with the requirements of necessity before the defence can be successful. The
attitude of our courts to a plea of necessity is often one of scepticism, and they also emphasise
that its field of application should be kept as narrow as possible.79
If X acts in a situation of necessity, she acts lawfully, and Y can therefore not act in private
defence against X’s act.80
3 Compulsion and inevitable evil A situation of necessity may arise either from compulsion or from inevitable evil. An example of the former is where Y orders X to commit an act
which is punishable, such as setting Z’s motor car on fire, and threatens to kill X if she refuses
to execute the command. In such a case the emergency is the result of an unlawful human act
and the act committed out of necessity (assuming that X yields to the threat) is directed at an
innocent third person, namely Z.
In the case of inevitable evil the situation of emergency is the result of non-human intervention, such as acts of nature (eg, floods or lightning flashes) or other chance circumstances (eg,
famine or shipwreck). Examples of such cases of necessity are the following:
(1) A fire breaks out in Y’s house while X is in it. X can save herself only by breaking a
window and escaping through it. If X is later charged with malicious injury to property in
respect of the broken window, she can rely on necessity as a ground of justification for her
conduct.
(2) X’s baby Y gets hold of a bottle of pills and swallows all the pills. In order to save Y’s life
X rushes her to hospital by car and exceeds the speed limit. If X is later charged with exceeding the speed limit, she may rely on necessity as a ground of justification for her conduct.
________________________
78
79
80
Goliath 1972 3 SA 1 (A) 22E. Examples of cases where the act of necessity was directed at a legal
provision are Rabodila 1974 3 SA 324 (O) (at a provision in a law prohibiting illegal entry into the Republic); Pretorius 1975 2 SA 85 (SWA) (at the rule prohibiting people from exceeding the speed limit);
Alfeus 1979 3 SA 145 (A) (at a prohibition in the former Terrorism Act 83 of 1967).
Samuel 1960 4 SA 702 (R) 703; Damascus 1965 4 SA 598 (R) 602; Kibi 1978 4 SA 173 (E) 178.
Goliath supra 29 32; Adams 1981 1 SA 187 (A) 220A–B. Necessity is recognised as a justification ground
in customary law (Botha 12; Labuschagne 1993 TRW 136–138; Myburgh 17). The defence incorporates
the present ambit of the defence in general criminal law, including the requirement that the threatened interest should generally be valued higher than the infringed interest (Botha 13; Myburgh 19) and the possibility that killing in necessity be justified (Myburgh 17; Botha 13; Labuschagne 1993 TRW 138). However
the customary defence is framed somewhat wider, allowing the possibility of acting in necessity in defence of one’s agnatic group or even the realm (Myburgh 19; Botha 12).
UNLAWFULNESS (JUSTIFICATION)
97
In the first example X’s act is directed at the interests of an innocent person (Y) while in the
second example her act is an infringement of a rule of criminal law only (the prohibition on
speeding).
For necessity to be successfully raised as a defence it is immaterial whether it stems from
compulsion or from inevitable evil. Nor does it matter whether the defensive or rescuing act is
directed at the interests of another person or at a legal provision.81 The question is merely
whether the person pleading necessity was faced with a situation of emergency.
4 Absolute and relative compulsion In the case of absolute compulsion (vis absoluta) X
does not commit a voluntary act: for example Y, who is much stronger than X, grabs X’s hand
who is holding a knife, and stabs Z. X is physically unable to prevent Y’s action. The reason
for X’s non-liability is then not necessity, but the absence of voluntary conduct.82 In the case
of relative compulsion (vis compulsiva) there is indeed a voluntary act on the part of X: Y
threatens to kill X if X does not kill Z. In this case X is free to choose to be killed herself. It is
only cases of relative compulsion which may amount to situations of necessity.
5 Necessity as a ground of justification Necessity is generally regarded as a ground of
justification (which excludes the unlawfulness of the act).83 Necessity is a ground of justification if X finds herself in an emergency situation, has to weigh two conflicting interests
against each other and then infringes the interest which is of less importance according to the
legal convictions of the community, in order to protect the interest which is of greater importance. For example, X parks her motor car in front of a doctor’s surgery on a yellow line so that
her husband, who is with her in the car, and who has just suffered a heart attack, may reach the
doctor as soon as possible. In this case the husband’s interest in his health outweighs the community’s interest that nobody should park on a yellow line; when charged with contravening
the parking regulations X may successfully relies on necessity as a ground of justification.
In the case of Bailey the Appellate Division stated that apart from excluding unlawfulness,
necessity could also exclude culpability.84 However, the judgment reflects that the type of defence that the Appellate Division is in fact referring to is putative necessity.85 Where the
requirements for the justification ground of necessity are not met, X’s conduct remains unlawful, but she can nevertheless escape liability for a crime requiring intention on the basis of lack
of knowledge of unlawfulness (ie, putative necessity).
6 Requirements for a successful plea of necessity The requirements for a successful plea
of necessity closely resemble the requirements for a successful plea of private defence. They
are the following:
(a) Some legal interest of X, such as her life, bodily integrity86 or property must be threatened. In principle one should also be able to protect other interests such as dignity, freedom of
movement and chastity in a situation of necessity.87
________________________
81 Goliath supra 10–11, 22.
82 Goliath supra 11, 29, and see supra II A 8, 10.
83 This is reflected by the classification of the defence in this work, see also Burchell 164; Kemp 111; Visser,
Vorster and Maré 201; De Wet and Swanepoel 81. See also Adams supra 220A–B; MD 2017 1 SACR 268
(ECB) pars 54–56.
84 Bailey 1982 3 SA 772 (A) 796A.
85 The court’s rejection (799B–C) of the “hybrid situation” in which “there is an intention to kill, but where
that intention is not entirely but to some extent excusable” (Hercules 1954 3 SA 826 (A) 832F) is indicative that the focus is not on whether there is a situation of objective necessity, but rather on the subjective
effect of the threat on the mental state of X. The court specifically does not adopt the normative approach
to culpability, which would be consistent with culpability being excluded on the basis of necessity, despite
the presence of intention and awareness of unlawfulness. On putative necessity, see infra par 7.
86 As regards a threat to life or bodily integrity, see Mahomed 1938 AD 30; Goliath 1972 3 SA 1 (A);
Rabodila 1974 3 SA 324 (O); Alfeus 1979 3 SA 145 (A).
61<0$1¶6&5,0,1$//$:
b 2QHFDQDOVRDFWLQDVLWXDWLRQRIQHFHVVLW\WRSURWHFWDQRWKHU¶VLQWHUHVWVXFKDVZKHUH
;SURWHFWV<DJDLQVWDWWDFNE\DQDQLPDO
c 7KHHPHUJHQF\PXVWDOUHDG\KDYHEHJXQRUEHLPPLQHQWEXWLWPXVWQRWKDYHWHUPLQ
DWHGQRUEHH[SHFWHGRQO\LQWKHIXWXUH
d :KHWKHU VRPHERG\ FDQ UDLVH WKH GHIHQFH RI QHFHVVLW\ LI VKH KHUVHOI LV UHVSRQVLEOH IRU
WKHHPHUJHQF\LVDFRQWURYHUVLDOTXHVWLRQ,WLVVXEPLWWHGWKDW;RXJKWQRWWREHSUHFOXGHG
IURPVXFFHVVIXOO\UDLVLQJLWPHUHO\EHFDXVHVKHFDXVHGWKHHPHUJHQF\KHUVHOI,IVKHZHUHLW
ZRXOGPHDQWKDWLIEHFDXVHRI;¶VFDUHOHVVQHVVKHUEDE\VZDOORZHGDQRYHUGRVHRISLOOV;
ZRXOGQRWEHDOORZHGWRH[FHHGWKHVSHHGOLPLWZKLOHUXVKLQJWKHEDE\WRKRVSLWDOEXWZRXOG
KDYH WR UHVLJQ KHUVHOI WR WKH FKLOG¶V G\LQJ 7KH WZR DFWV QDPHO\ WKH FUHDWLRQ RI GDQJHU DQG
UHVFXH IURP LW VKRXOG EH NHSW DSDUW 7R SURMHFW WKH UHSUHKHQVLELOLW\ RI WKH IRUPHU RQWR WKH
ODWWHULVVWURQJO\UHPLQLVFHQWRIWKHGLVFDUGHGWDLQWGRFWULQH GRFWULQHRIversari in re illicita ,IWKHILUVWDFWDPRXQWVWRDFULPH;FDQEHSXQLVKHGIRULWDVZKHUHVKHVHWVILUHWRDKRXVH
DQGWKHQKDVWREUHDNRXWRIWKHKRXVHWRVDYHKHURZQOLIH
$VDJHQHUDOUXOHDSHUVRQZKRYROXQWDULO\DQGGHOLEHUDWHO\EHFRPHVDPHPEHURIDFULPLQDO
JDQJZLWKNQRZOHGJHRILWVGLVFLSOLQDU\FRGHRIYHQJHDQFHFDQQRWUHO\RQQHFHVVLW\ FRPSXO
VLRQ DV D GHIHQFH LI VKH SDUWLFLSDWHV LQ WKH FULPLQDO DFWLYLWLHV EXW ODWHU DOOHJHV WKDW VKH ZDV
FRHUFHGWRGRVR
e ,IVRPHERG\LVOHJDOO\FRPSHOOHGWRHQGXUHWKHGDQJHUVKHFDQQRWUHO\RQQHFHVVLW\3HU
VRQV VXFK DV SROLFH RIILFHUV VROGLHUV DQG PHPEHUV RI D ILUH EULJDGH FDQQRW DYHUW WKH GDQJHUV
LQKHUHQW LQ WKH H[HUFLVH RI WKHLU SURIHVVLRQ E\ LQIULQJLQJ WKH ULJKWV RI LQQRFHQW SDUWLHV
$QRWKHU DVSHFW RI WKLV UXOH LV WKDW D SHUVRQ FDQQRW UHO\ RQ QHFHVVLW\ DV D GHIHQFH LI ZKDW
DSSHDUVWRKHUDVDWKUHDWLVLQIDFWODZIXO KXPDQ FRQGXFW,I;LVDUUHVWHGODZIXOO\VKHPD\
WKHUHIRUHQRWGDPDJHWKHSROLFHYDQLQZKLFKVKHKDVEHHQORFNHGXSLQRUGHUWRHVFDSHIURP
LW
f ;PXVWEHFRQVFLRXVRIWKHIDFWWKDWDQHPHUJHQF\H[LVWVDQGWKDWVKHLVWKHUHIRUHDFW
LQJ RXW RI QHFHVVLW\ 7KHUH LV QR VXFK WKLQJ DV D FKDQFH RU DFFLGHQWDO DFW RI QHFHVVLW\ ,I ;
WKURZVDEULFNWKURXJKWKHZLQGRZRI<¶VKRXVHLQRUGHUWREUHDNLQDQGLWODWHUDSSHDUVWKDW
E\VRGRLQJVKHKDVVDYHG<DQGKHUIDPLO\ZKRZHUHVOHHSLQJLQDURRPILOOHGZLWKSRLVRQ
RXVJDVIURPFHUWDLQGHDWK;FDQQRWUHO\RQQHFHVVLW\DVDGHIHQFH,IWKHHPHUJHQF\LVWKH
BBBBBBBBBBBBBBBBBBBBBBBB
7KHPHUHGDQJHURIORVLQJRQH¶VMREGRHVQRWJLYHRQHWKHULJKWWRDFWRXWRIQHFHVVLW\LIRQHFDQQRWH[HU
FLVHRQH¶VSURIHVVLRQZLWKRXWFRQWUDYHQLQJWKHODZRQHVKRXOGILQGDQRWKHUSURIHVVLRQ±Canestra
6$ $ &IPretorius6$ 6:$ ZKHUHWKHDFWFRPPLWWHGRXWRIQHFHVVLW\ZDVDLPHGDWSURWHFWLQJ;¶V
FKLOG
Pretorius supra%Kibi6$ ( Lungile6$&5 6&$ b–cCloete
6$&5 )% SDU
$XWKRULW\ IRU WKH SURSRVLWLRQ WKDW ; FDQQRW UHO\ RQ WKH GHIHQFH RI QHFHVVLW\ LI VKH KHUVHOI FDXVHG WKH
VLWXDWLRQRIHPHUJHQF\FDQEHIRXQGLQKibi6$ ( DQGLQGLUHFWO\DOVRLQBradbury
6$ $ (±)2QWKHRWKHUKDQGGLUHFWDXWKRULW\IRUWKHFRQWUDU\YLHZQDPHO\WKDW;LVQRW
SUHFOXGHGIURPUHO\LQJRQQHFHVVLW\DVDGHIHQFHHYHQWKRXJKVKHKHUVHOIFDXVHGWKHHPHUJHQF\FDQEH
IRXQGLQPretorius supra'DQGLQGLUHFWO\DOVRLQMahomed$':ULWHUVZKRVXSSRUWWKHODWWHU
YLHZLQFOXGHDe Wet and SwanepoelVan der Merwe and Olivier±/DEXVFKDJQHActa Juridica±Van der WesthuizenDQGJecheck and Weigend
De Wet and Swanepoel2QWKLVGRFWULQHVHHinfra9$
Bradbury6$ $ +Lungile6$&5 6&$ e–fMandela6$&5
& c–d
Kibi6$ ( Kibi supra
7KLVDVSHFWRIWKHGHIHQFHRIQHFHVVLW\KDVQRW\HWHQMR\HGWKHDWWHQWLRQRIRXUFRXUWV+RZHYHUDVH[
SODLQHGsupra,9$;PXVWEHDZDUHRIWKHH[LVWHQFHRIMXVWLILFDWRU\FLUFXPVWDQFHVLIVKHUHOLHVRQD
JURXQGRIMXVWLILFDWLRQ7KHVDPHFRQVLGHUDWLRQDSSOLHVKHUHDVLQWKHFRUUHVSRQGLQJUHTXLUHPHQWIRUSULYDWH
>continued@
81/$:)8/1(66 -867,),&$7,21 UHVXOW RI WKUHDWV RU FRHUFLRQ ; PXVW EH aware RI WKH WKUHDWV DQG believe WKDW WKH\ ZLOO EH
H[HFXWHG,IIRUH[DPSOH;NQRZVWKDW=ZKRLVXWWHULQJWKHWKUHDWVLVRQO\MRNLQJRURQO\
KROGLQJDWR\SLVWROEXWVKHQHYHUWKHOHVVNLOOV<VKHFDQQRWUHO\RQWKHGHIHQFHRIQHFHVVLW\
g ;¶VDFWPXVWEHQHFHVVDU\LQRUGHUWRDYHUWWKHWKUHDWRUGDQJHU:KHUHIRUH[DPSOH=
RUGHUV;WRNLOO<DQGWKUHDWHQVWRNLOO;LIVKHGRHVQRWDQGLWDSSHDUVWKDW;FDQRYHUFRPH
KHUGLOHPPDE\IOHHLQJVKHPXVWIOHHLISRVVLEOHDQGQHFHVVDU\VHHNSROLFHSURWHFWLRQ
h 7KHKDUPRFFDVLRQHGE\WKHGHIHQVLYHDFWPXVWQRWEHRXWRISURSRUWLRQWRWKHLQWHUHVW
WKUHDWHQHGDQG;PXVWWKHUHIRUHQRWFDXVHPRUHKDUPWKDQLVQHFHVVDU\WRHVFDSHWKHGDQJHU
7KLV ³SURSRUWLRQDOLW\ UHTXLUHPHQW´ LV RIWHQ H[SUHVVHG LQ WKH VWDWHPHQW WKDW WKH SURWHFWHG LQ
WHUHVW VKRXOG EH RI JUHDWHU YDOXH WKDQ WKH LQWHUHVW ZKLFK LV LQIULQJHG ,W LV WKLV UHTXLUHPHQW
ZKLFKLVWKHPRVWLPSRUWDQWRQHLQSUDFWLFHDQGLWFDQDOVREHWKHPRVWGLIILFXOWWRDSSO\7KH
SURWHFWHGDQGWKHLPSDLUHGLQWHUHVWVDUHRIWHQRIDGLIIHUHQWQDWXUHDVZKHUHVRPHERG\GDP
DJHVDQRWKHU¶VSURSHUW\LQSURWHFWLRQRIKHURZQSK\VLFDOLQWHJULW\
,WLVLPSRVVLEOHWRGUDZXSVWULFWDEVWUDFWUXOHVLQDGYDQFHIRUGHWHUPLQLQJZKHWKHUWKHGH
IHQVLYHDFWLVSURSRUWLRQDWHWRWKHLPPLQHQWGDQJHU(DFKFDVHPXVWEHMXGJHGLQOLJKWRILWVRZQ
SDUWLFXODUFLUFXPVWDQFHV2QHRIWKHPRVWLPSRUWDQW±DQGDOVRWKHPRVWGLIILFXOW±TXHVWLRQV
DULVLQJLQUHVSHFWRIWKHUHTXLUHPHQWXQGHUGLVFXVVLRQLVZKHWKHURQHLVHQWLWOHGWRNLOODQRWKHU
LQDVLWXDWLRQRIQHFHVVLW\%HFDXVHRILWVFRPSOH[LW\WKLVTXHVWLRQZLOOEHGLVFXVVHGVHSDUDWHO\
EHORZ
3XWDWLYHQHFHVVLW\,I;VXEMHFWLYHO\WKLQNVWKDWVKHLVLQDQHPHUJHQF\VLWXDWLRQZKHUHDV
WKHUHLVLQIDFWQRWKUHDWWRKHULQWHUHVWVVKHFDQQRWVXFFHHGZLWKDSOHDRIQHFHVVLW\,ILQVXFK
D FDVH VKH FRPPLWV DQ DFW ZKLFK GRHV QRW FRPSO\ ZLWK WKH UHTXLUHPHQWV RI WKH GHIHQFH RI
QHFHVVLW\ KHU DFW LV XQODZIXO +RZHYHU KHU PLVWDNHQ EHOLHI LQ WKH H[LVWHQFH RI MXVWLILFDWRU\
FLUFXPVWDQFHVPD\H[FOXGHFXOSDELOLW\,IVKHLVFKDUJHGZLWKDFULPHUHTXLULQJLQWHQWLRQKHU
PLVWDNH FRXOG PHDQ WKDW VKH ODFNHG DZDUHQHVV RI XQODZIXOQHVV DQG WKHUHIRUH dolus LQWHQ
WLRQ ,I VKH LV FKDUJHG ZLWK D FULPH UHTXLULQJ QHJOLJHQFH KHU PLVWDNH FRXOG VHUYH WR H[
FOXGH FXOSDELOLW\ SURYLGHG WKH PLVWDNH ZDV UHDVRQDEOH $ SXWDWLYH LPDJLQHG VLWXDWLRQ RI
QHFHVVLW\FDQWKHUHIRUHQRWEHHTXDWHGZLWKDUHDORQH
7KHFRXUWVRIWHQVWDWHWKDWLQRUGHUWRGHWHUPLQHZKHWKHUDSOHDRIQHFHVVLW\VKRXOGVXFFHHG
RQHVKRXOGDSSO\WKHWHVWRIWKHUHDVRQDEOHSHUVRQZRXOGVKHLIVKHZHUHWRILQGKHUVHOILQWKH
VDPHFLUFXPVWDQFHVGRWKHVDPHDV;GLG"7KLVKRZHYHULVWKHWHVWIRUQHJOLJHQFH,QFDVHV
RIQHFHVVLW\LWPXVWEHGHWHUPLQHGZKHWKHU;reallyIRXQGKHUVHOILQDVLWXDWLRQRIHPHUJHQF\
+RZHYHU LW VHHPV WKDW RXU FRXUWV LQ VSHDNLQJ RI WKH UHDVRQDEOH SHUVRQ LQ WKLV FRQQHFWLRQ
PHDQRQO\WKDW;¶VFRQGXFWPXVWKDYHEHHQUHDVRQDEOH7KH\VHHPWRUHJDUGWKHUHDVRQDEOH
SHUVRQDVDSHUVRQLILFDWLRQRIWKHOHJDOQRWLRQVRIVRFLHW\DQGWKLVWHVWPHUHO\DVDSUDFWLFDO
DLGLQGHWHUPLQLQJWKHXQODZIXOQHVVRIWKHDFW
BBBBBBBBBBBBBBBBBBBBBBBB
GHIHQFH supra,9% G 6HHJescheck and WeigendSchönke-SchröderQadVMaurachZipfFKSDUIIKühlFKSDUIIRoxinFKSDUII
Mucherechdzo6$ =6 %±&
Damascus 6$ 5 ± Bradbury 6$ $ & &±' )±*
Rabodila supraAlfeus supra
2QWKLVUHTXLUHPHQWVHHJHQHUDOO\0DODQ6$&5 & InfraSDU
Van Zyl>@$OO6$ : ,QWKLVFDVHPRWRULVW;ZDVLQYROYHGLQDVOLJKWPRWRUDFFLGHQW+H
IDLOHGWRVWRSDIWHUWKHDFFLGHQW+HWKRXJKWWKDWKHZDVWKHYLFWLPRIDSODQQHGKLMDFNLQJRIKLVPRWRU
FDU2QWKHIDFWVWKHFRXUWFRXOGQRWILQGWKDWWKHUHZDVLQGHHGDQDWWHPSWWRKLMDFNKLVFDUEXWWKHFRXUW
KHOGWKDWKHKRQHVWO\EHOLHYHGWKDWKLVFDUZRXOGEHKLMDFNHG+HZDVIRXQGQRWJXLOW\RIWKHVWDWXWRU\
FULPHRIOHDYLQJWKHVFHQHRIDQDFFLGHQWEHFDXVHRIODFNRIFXOSDELOLW\ LQWHQW )RUDQDQDO\VLVRIWKH
MXGJPHQWVHH6Q\PDQSACJ
6HHWKHGLVFXVVLRQRILQWHQWLRQDQGQHJOLJHQFHinfra,9&9'
Goliath supraRabodila supraPeterson6$ $ )±*
100
SNYMAN’S CRIMINAL LAW
8 Killing another person out of necessity
(a) Killing another in necessity may constitute a complete defence Possibly the most controversial question relating to necessity as a ground of justification is whether a person who is
threatened may kill another in order to escape from the situation of emergency. Naturally, the
question arises only if the threatened person finds herself in mortal danger. This mortal danger
may stem from compulsion, as where Y threatens to kill X if X does not kill Z, or from an
event not occasioned by human intervention, as where two shipwrecked persons vie for control of a timber beam which can support only one of them, and the one eventually pushes the
other away in order to stay alive.103
In Goliath104 the Appellate Division held that necessity could be a complete defence even in
a situation in which X killed another. In this case X was ordered by Z to hold Y tightly so that
Z might stab and kill Y. X was unwilling throughout, but Z threatened to kill him if he refused
to help him. The court inferred from the circumstances of the case that it was not possible for
X to run away from Z – Z would then have stabbed and killed him. The only way in which X
could save his own life was by yielding to Z’s threat and assisting him in the murder. In the
court a quo X was acquitted on the ground of compulsion, and on appeal by the state on a
question of law reserved, the Appellate Division held that compulsion could, depending upon
the circumstances of a case, constitute a complete defence to a charge of murder. It was added
that a court should not come to such a conclusion lightly, and that the facts would have to be
closely scrutinised and judged with the greatest caution.
One of the decisive considerations in the main judgment of the court, delivered by Rumpff
JA, was that one should never demand of X more than is reasonable; that, considering everyone’s inclination to self-preservation, an ordinary person regards her life as more important
than that of another; that only she “who is endowed with a quality of heroism” will purposely
sacrifice her life for another, and that to demand of X that she should sacrifice herself therefore amounts to demanding more of her than is demanded of the average person.105 It is submitted that the judgment in Goliath is correct.
(b) Whether act committed in necessity operates here as ground excluding culpability and
not as ground of justification The important question which arises from a dogmatic point of
view, is whether the compulsion in the circumstances of this case amounted to a ground of
justification or whether it was a ground which excluded X’s culpability. Unfortunately neither
judgment offers complete clarity in this regard. In delivering the main judgment, Rumpff JA
initially expressly declined to answer this question.106 Curiously, however, Rumpff JA then
proceeded to answer in the affirmative107 the first question of law, which inquired: “Whether
the trial Court correctly came to the conclusion (a) that the circumstances of the present case
were such as to constitute the defence of compulsion in law; and/or (b) that in the circumstances of the present case the compulsion was such as to justify the acts of the accused.” The
language of justification is plain.
Wessels JA, in his minority judgment, makes it clear that the basis of the verdict in the trial
court was also that X was not acting unlawfully.108 In the course of his judgment Wessels JA
expressly decided that the compulsion excluded not the unlawfulness of the act, but X’s culp
________________________
103 For an extensive discussion of the subject, see Burchell and Milton 267–279; Van der Westhuizen 617–
696; Paley 1971 Acta Juridica 205 230 ff; Zeffert 1975 SALJ 321; Pauw 1977 De Jure 72, Burchell 1977
SALJ 282; Burchell 1988 SACJ 18; Maré 1993 SACJ 165.
104 1972 3 SA 1 (A).
105 At 25.
106 At 25H–26A.
107 At 27E.
108 At 28–29.
UNLAWFULNESS (JUSTIFICATION)
101
ability.109 The primary authority on which Wessels JA relies in this regard – the cases of
Mahomed and Hercules – are less than convincing.110 It is evident that Wessels JA’s conclusions are both confusing and dated and do not take account of the development in South
African law relating to knowledge of unlawfulness since the De Blom case.111 In the view of
Wessels JA,112 if the compulsion were a ground of justification, it would mean that X’s conduct was lawful and that Y would not have been entitled to act in private defence against X’s
aggression, since acting in private defence is not possible against lawful conduct. It would
obviously be an untenable conclusion if Y was to be compelled by law to submit to X’s mortal
attack on himself. However, this view does not take account of the fact that the justification
ground of necessity would equally be available to Y in such a scenario.113
A more significant reason why X’s conduct may not be regarded as justified is the consideration that X did not protect an interest which was of greater value than the one she infringed,
because the law ought not to assume that one person’s life is more valuable than that of
another. In Mandela114 the court assumed that, on a charge of murder, necessity in the form of
coercion may exclude X’s culpability. It may be argued that to assume that one person’s life is
more valuable than that of another is incompatible with section 9(1) of the Constitution, which
provides that everyone is equal before the law and has the right to equal protection and benefit
of the law. The provisions of sections 10 and 11, which provide for a right to human dignity
and life respectively, further strengthen the view that one person’s life may not be regarded as
more valuable than that of another. Whether the necessity defence will indeed be limited, on
constitutional grounds, where killing in necessity takes place has yet to be conclusively
determined.
However, in Maimela the Supreme Court of Appeal upheld the defence of necessity in the
situation where Y was shot dead, holding that X’s conduct was objectively reasonable in the
circumstances.115 It was contended on behalf of the appellants that it was incumbent upon a
court, in the light of the protection afforded the innocent victim in terms of the right to life,116
________________________
109 At 36G–H, 38A.
110 Mahomed 1938 AD 30 is discussed in some detail at 30–33, with Wessels JA concluding that the basis
for the verdict in Mahomed is putative necessity rather than a lack of unlawfulness (32H). Whatever the
merits of this conclusion, Wessels JA then proceeds to add (32 in fine–33A) that it follows that it is obvious (“vanselfsprekend”) that in a case where putative necessity has application, actual necessity would
also have application, whether or not it also serves as a justification ground. Very little is obvious about
this statement, one would suggest, other than that it contemplates a puzzling overlap of subjective and
objective considerations. The Hercules case (1954 3 SA 826 (A)) is notorious for the “hybrid or middle
situation where there is an intention to kill, but where that intention is not entirely but to some extent excusable” (832F). This unfortunate abstraction was conclusively done away with in Bailey supra 799B–C.
Nevertheless, it is clear that Wessels JA is supportive of the Hercules approach, such that compulsion is
regarded as a ground excluding fault, in the sense that intention, which is partly excusable, is not regarded as dolus for the purposes of a murder charge (34A–B).
111 De Blom 1977 3 SA 513 (A). See infra V C 24.
112 At 29H.
113 One cannot act in private defence against an involuntary human act (such as that of a sleepwalker) or the
attack of an unowned animal (supra IV B 3). Such an attack does not constitute an unlawful act. The relevant basis justifying a defensive act in these extraordinary circumstances is necessity. In the same way,
the basis for response to an attack which is objectively lawful, having been justified by necessity (another
highly exceptional hypothetical!), can only, in turn, be based on necessity, which allows for the interests
of a legally innocent person to be infringed.
114 2001 1 SACR 156 (C) 167c–e.
115 Maimela v Makhado Municipality 2011 2 SACR 339 (SCA) par 23.
116 S 11 of the Constitution, 1996.
102
SNYMAN’S CRIMINAL LAW
to only accept that it was lawful to kill an innocent person in extremely limited circumstances.117 However, the court, relying on the statement in the Constitutional Court case of
Makwanyane118 to the effect that “[t]o deny the innocent person the right to act in self-defence
would be to deny to that individual his or her right to life”, stated that the same would be true
where an innocent person acts in necessity, and that thus where X “is able to show that his
conduct in causing the death of an innocent person was objectively reasonable in the particular
circumstances, he will be exonerated”.119
9 Necessity as a ground for the mitigation of punishment If the defence of necessity is
rejected, for example because X could have fled, or because the infringed interest was more
important than the one protected, the extent of the threat to X may be taken into account as a
mitigating factor when punishment is imposed.120
D CONSENT
1 General Consent by the person who would otherwise be regarded as the victim of X’s
conduct may, in certain cases, render X’s otherwise unlawful conduct lawful.121 To generalise
about consent as a ground of justification in criminal law is possible only to a limited degree,
since consent can operate as a ground of justification in respect of certain crimes only, and
then only under certain circumstances. If, in crimes in which consent may exclude the unlawfulness of the act (such as theft), no consent has been given, the conduct is unlawful. If X
thinks that consent has been given, whereas in fact no consent has been given, X may escape
liability on the ground that she lacked culpability.122
2 Requirements for successfully relying on consent as a defence The requirements for
successfully relying on consent as a defence will now be discussed. The first requirement
(marked (a)) requires the longest discussion, and will, in the interests of clarity, be subdivided
into a number of subdivisions (marked (i) to (iii)). These subdivisions should not be confused
with the later separate requirements marked (b) to (g)).
(a) The crime and the type of act in question must be of such a nature that the law recognises consent to the commission of such an act as a ground of justification Consent does not
operate as a ground of justification in all crimes, and in those crimes in which it does, it does
so in certain circumstances only. It is therefore necessary first of all to identity the crimes in
________________________
117
118
119
120
Par 20.
1995 2 SACR 1 (CC) par 38.
Par 20.
Werner 1947 2 SA 828 (A) 837–838; Mneke 1961 2 SA 240 (N); Goliath supra 23, 30; X 1974 1 SA 344
(RA) 348B–D.
121 In customary law consent may exclude unlawfulness, although the focus in customary law tends to be on
the consent of the group, rather than the individual (Myburgh 27; Prinsloo 175; Botha 14). Labuschagne
and Van den Heever 1995 TRW 148 point out that, just as consent which does not accord with public policy in general law is not recognised as a defence, so the consent of the agnatic group of the victim will
not exclude the unlawfulness of the conduct where this is not in line with the interests of society.
122 K 1958 3 SA 420 (A) 421, 425; Z 1960 1 SA 739 (A); D 1963 3 SA 263 (E) 267.
103
UNLAWFULNESS (JUSTIFICATION)
respect of which consent can operate as a ground of justification. The following is a diagram
of the broad arrangement of the field of investigation:
Crimes in respect of
which consent may operate
as justification
Crimes against
specific individual
Crimes against
community or state
Consent no defence
Crimes where absence
of consent forms part
of definitional
elements
Crimes where
consent can
never be a
defence
Crimes where
consent is a ground
of justification
Crimes where
consent is
sometimes a
justification
eg, rape
eg, murder
eg, theft, injury to
property
eg, assault
Requirements for
valid consent – see
below (b)–(g)
(i) Crimes in respect of which consent may operate as a ground of justification A distinction must be drawn between those types of crimes which are committed against a specific,
identifiable, individual person, and those that are not committed against an individual but
against the community or the state, such as high treason, perjury, bigamy, possession of drugs
or contravention of the speed limit. There is no room for the defence of consent in the latter
type of crimes. It can only operate as a defence in the former.
Turning now to those crimes that are always committed against a specific individual, it is
useful, in considering the effect of consent on liability, to classify these crimes into four
categories.
Firstly, there are those crimes in respect of which consent does operate as a defence, but
whose dogmatic structure is such that the consent does not operate as a ground of justification
because the absence of consent forms part of the definitional elements of the crime. The bestknown example in this respect is rape. A person (X) only commits rape if the penetration takes
place without the victim’s (Y’s) consent. Absence of consent must of necessity form part of
the definitional elements of the crime, because it forms part of the minimum requirements
necessary for the existence of a meaningful criminal prohibition.
Secondly, there are crimes in respect of which consent by the injured party is never recognised as a defence. The best-known example is murder.123 Both mercy killing124 and active
voluntary euthanasia (PAE) are unlawful, and may give rise to a murder conviction.125
________________________
123 Robinson 1968 1 SA 666 (A) 678; Hibbert 1979 4 SA 717 (D); Agliotti 2011 2 SACR 437 (GSJ) par 21.
Although suicide is no longer a crime (Grotjohn 1970 2 SA 355 (A) 363), somebody who assists another
[continued]
104
SNYMAN’S CRIMINAL LAW
Thirdly, there are crimes in respect of which consent does operate as a ground of justification. Well-known examples of such crimes are theft and malicious injury to property.
Fourthly, there is a group of crimes in respect of which consent is sometimes regarded as a
ground of justification and sometimes not. An example of a crime falling into this category is
assault.
As far as this fourth group of crimes is concerned, it should be borne in mind that, unlike the
law of delict, which in principle protects individual rights or interests, criminal law protects
the public interest too; the state or community has an interest in the prosecution and punishment of all crimes, even those committed against an individual. The result is that, as far as
criminal law is concerned, an individual’s consent to impairment of her interests is not always
recognised by the law. Thus intercourse with a girl below a certain age constitutes a crime
even where she consents, and even physical harm inflicted on somebody at her own request is
sometimes regarded by the law as unlawful and therefore as amounting to assault. It is difficult to pinpoint the dividing line between harm to which one may and harm to which one may
not consent. The criterion to be applied in this respect is the general criterion of unlawfulness,
namely the community’s perceptions of justice or public policy.126
(ii) When consent may be a ground of justification in assault On a charge of assault, consent may sometimes be a ground of justification and sometimes not. The best-known examples
of assault cases where consent may indeed operate as a defence are those where injuries are
inflicted on others in the course of sporting events, and where a person’s bodily integrity is
impaired in the course of medical treatment, such as an operation. Other examples of “impairments of bodily integrity” such as a kiss, a handshake or even a haircut occur so often in
everyday life that non-liability is taken for granted.
A participant in sport may validly consent only to those injuries which are normally to be
expected in that particular sport. Voluntary participation in a particular type of sport may also
imply that the participant consents to injuries sustained as a result of acts which contravene the
rules of the game, such as a late tackle in rugby, but only if such incidents are normally to be
expected in that particular game. Serious injuries which are forbidden by the rules of the game
and which are not normally to be expected cannot, however, be justified by consent.
The reason why a medical doctor cannot be charged with assaulting a patient upon whom
she performs an operation is the patient’s consent to the operation127 (assuming that it has been
given). If it was impossible for the patient to consent because of unconsciousness or mental
illness, for example, the doctor’s conduct may nevertheless be justified by necessity or presumed consent.128 In all these cases the doctor must have the intention of performing a medical
operation on the patient.129 If, however, the patient refuses to consent, the doctor’s conduct is,
with certain exceptions,130 not justified.
________________________
124
125
126
127
128
129
130
in committing suicide, or who brings it about, may render herself guilty of murder – Grotjohn supra;
Agliotti supra. However, in Minister of Justice v Estate Stransham-Ford 2017 3 SA 152 (SCA) the court
held that in respect of assisted suicide (PAS) a more nuanced approach applied, in terms of which criminal liability would not necessarily follow.
Hartmann 1975 3 SA 532 (C); De Belloq 1975 3 SA 538 (T) 539D; Nkwanyana 2003 1 SACR 67 (W)
72d–f.
Minister of Justice v Estate Stransham-Ford supra pars 36–40. It would be preferable for legal development in relation to PAE and PAS to occur through Parliament (par 101).
Cf supra IV A 8 and see Sikunyana 1961 3 SA 549 (E) 551; Collett 1978 3 SA 206 (RA) 209, 211–213.
Sikunyana 1961 3 SA 549 (E) 551; D 1998 1 SACR 33 (T) 39.
On necessity, see supra IV C and on presumed consent infra IV E.
Strauss 1964 SALJ 179 183, 187.
As where a parent consents to a necessary operation on an unwilling child. See generally the discussion in
Strauss 5–6.
UNLAWFULNESS (JUSTIFICATION)
105
(iii) Sexual assault Sexual assault (presently a statutory offence)131 may be committed with
or without the use of force or the infliction of injuries.132 Consent may operate as a justification
for the act if no injuries are inflicted.133 Where injuries are inflicted, it has been held that
consent may not be pleaded as a defence.134 It would, however, seem to be more realistic to
enquire in such cases too whether the act is contra bonos mores or not. If the injury is slight, it
is conceivable that the law may recognise consent to the act as a defence.135
(b) The consent must be given voluntarily, without coercion136 Whether consent has been
given voluntarily, is mostly a factual question. Consent obtained as a result of violence, fear or
intimidation is not voluntary consent. If, for example, X brandishes a revolver while demanding money from Y and Y hands over the money because she feels threatened, there is no valid
consent to the giving of the money.137 Mere submission is not consent.138 If a woman decides
that it is futile to resist the strong, armed attacker who is trying to rape her, and simply acquiesces in what he does to her, her conduct cannot be construed as consent to intercourse.139
(c) The person giving the consent must be mentally capable of giving consent She must
have the mental capacity to know not only the nature of the act to which she consents, but also
to appreciate its consequences. For this reason if a woman is mentally ill, under a certain age,
drunk, asleep or unconscious, she cannot give valid consent to sexual penetration.140 As far as
children are concerned, a girl under the age of twelve is at law incapable of giving valid
consent to sexual intercourse. Even if she “consents”, sexual penetration of her amounts to
rape.141
In respect of other crimes there is no such arbitrary age limit. In these cases whether the
child is endowed with the required mental abilities is always a question of fact. Factors such as
the child’s intelligence, experience of life, general standard of education and social background must be taken into account. Sexual penetration of a person above the age of twelve
years but below the age of sixteen, with consent, is not rape, but constitutes a statutory offence
sometimes referred to as “statutory rape”, that is, contravening section 15(1) of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act.142
(d) The consenting person must be aware of the true and material facts regarding the act to
which she consents What the material facts are depends on the definitional elements of the
particular crime. In the case of rape the woman must be aware of the fact that it is sexual penetration to which she is consenting. If she thinks that an operation is to be performed on her,
there is no valid consent.143 This is a case of a mistake in respect of the act, known as error in
negotio. If, on the other hand, the woman knows that she is consenting to sexual penetration,
but is merely mistaken as regards its consequences (as where she thinks that the penetration
will cure her of a vaginal infection), there is valid consent.144
________________________
131
132
133
134
135
136
137
138
139
140
141
142
143
144
Infra XI D.
Infra XI D.
Matsemela 1988 2 SA 254 (T); D 1998 1 SACR 33 (T) 39d–e.
D 1963 3 SA 263 (E) 265.
Matsemela 1988 2 SA 254 (T).
C 1952 4 SA 117 (O) 121; M 1953 4 SA 393 (A). For a more detailed discussion of this requirement, see
the discussion of the corresponding requirement in rape infra XI B 6.
Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 1 SA 234 (A).
McCoy 1953 2 SA 4 (R) 12; D 1969 2 SA 591 (RA).
Volschenck 1968 2 PH H283 (D).
C 1952 4 SA 117 (O) 121; K 1958 3 SA 420 (A) 421.
K 1951 4 SA 49 (O) 52; Z 1960 1 SA 739 (A) 742.
32 of 2007. See infra XI N.
Flattery [1877] 2 QBD 410; Williams [1923] 1 KB 340.
Williams 1931 1 PH H38 (E); K 1966 1 SA 366 (RA).
106
SNYMAN’S CRIMINAL LAW
In cases of rape, there can furthermore be no valid consent if the woman mistakes the identity of the man (error personae). If, in the darkness of the hotel room, she thinks that it is her
husband who is having intercourse with her, whereas in fact it is a stranger, there is no valid
consent.145
(e) The consent may be given either expressly or tacitly It is customary to require the
patient to give written consent to some types of operation, but naturally the rugby player need
not before a game give each of his opponents express permission to tackle him. There is no
qualitative difference between express and tacit consent.
( f ) The consent must be given before the otherwise unlawful act is committed Approval
given afterwards does not render the act lawful. Consent, once given, remains revocable, provided the act has not yet been committed.146 A person cannot bind herself never to revoke consent to, for example, assault. Such an agreement would be invalid as being contra bonos mores.
Neither can an employee, for example, agree with her employer that she will waive the protection which the law affords her against unlawful assault, and allow her employer to decide
when she may be punished.147 Such “consent” is in conflict with public policy, for it undermines the whole operation of the legal order on the basis of the equality of all people in the eyes
of the law.
(g) In principle consent must be given by the complainant herself In exceptional circumstances someone else may give consent on her behalf, as where a parent consents to an operation to be performed on her child.
E PRESUMED CONSENT148
1 Definition If X commits an act which infringes the interests of another (Y), and X’s
act thereby accords with the definitional elements of a crime, her conduct is justified if she
acts in defence of, or in the furthering of, Y’s interests, in circumstances in which Y’s
consent to the act is not obtainable but there are, nevertheless, at the time of X’s conduct
reasonable grounds for assuming that Y would indeed have consented to X’s conduct had
she been in a position to make a decision about it.149
The type of conduct falling under this ground of justification is usually discussed by authors of
textbooks on criminal law under the heading of “spontaneous agency”, “unauthorised administration” or “negotiorum gestio”. Whereas in the ground of justification known as consent
there is an actual manifestation of the will on the part of Y, in this ground of justification the
law ascribes to Y a presumed consent.
________________________
145
146
147
148
C 1952 4 SA 117 (O) 120–121.
As does non-consent: M 1953 4 SA 393 (A) 397–398.
Collett 1978 3 SA 206 (RA) 211, 212.
Labuschagne 1994 TSAR 811; Snyman 1996 THRHR 106. There is, as far as could be ascertained, no
South African decision in a criminal matter in which this defence was squarely an issue. The reason for
this is not that the defence is not recognised in our law, but simply that in sets of facts in which this defence comes to the fore, it is mostly so obvious that X’s conduct is justified, that the prosecution authorities do not even bother to charge X with the commission of a crime. Certain tribes recognise negotiorum
gestio as a justification ground – Myburgh 27; Botha 14.
149 Snyman 1996 THRHR 106 107. S 20(3) of the Transkeian Penal Code of 1983 (Act 9 of 1983 of the
Transkei) contains a provision which to a large extent covers the ground of justification presently under
discussion. The subs reads as follows: “No act or omission shall be an offence by reason of any harm
which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for the person to signify consent, or if that person
is incapable of giving consent and has no guardian or other person in lawful charge of her from whom it
is possible to obtain consent in time for the thing to be done with benefit.”
UNLAWFULNESS (JUSTIFICATION)
107
2 Examples The following are some examples of situations in which this ground of justification finds application:
(a) Y loses consciousness in a motor accident. X1, an ambulance driver and paramedic
summoned to the scene of the accident, transports Y to a hospital where X2 performs an
operation on her in order to save her life. Although X1’s conduct conforms to the definitional
elements of kidnapping (deprivation of a person’s freedom of movement), her conduct is
justified by the present ground of justification and she can accordingly not be found guilty of
this crime. As far as X2 is concerned, although her conduct conforms to the definitional
elements of assault, she is not guilty of this crime because her conduct is justified by the
present ground of justification.
(b) While X’s neighbour, Y, is away on holiday, X notices that Y’s house has been broken
into. It is impossible for X to contact Y. In order to protect Y’s possessions, X affixes some
form of burglar proofing to the windows of Y’s house and removes some of Y’s belongings to
her (X’s) house for safekeeping until Y returns. If X is subsequently charged with trespassing
onto Y’s property, injury to property (because of her affixing of burglar proofing to the windows of Y’s house) and theft of Y’s property (because of her removal of some of Y’s belongings to her (X’s) house), she can invoke this ground of justification as a defence.
3 Requirements for successfully relying on this ground of justification The requirements
for successfully relying on this ground of justification are the following:150
(a) It must not be possible for X to obtain Y’s consent in advance. If it is possible, X must
obtain Y’s consent, in which case X may rely on consent as justification.
(b) There must be reasonable grounds for assuming that, had Y been aware of the material
facts, she would not have objected to X’s conduct. The test to ascertain the existence of
reasonable grounds is objective.
(c) The reasonable grounds for assuming that Y would not have objected to X’s conduct
must exist at the time that X performs her act.
(d) At the time of performing her act X must know that there are reasonable grounds for
assuming that Y would not object to her (X’s) acts.
(e) X must intend to protect or further Y’s interests.
(f) X’s intrusion into Y’s interests must not go beyond conduct to which Y would presumably have given consent.
(g) It is not required that X’s act should indeed have succeeded in protecting or furthering
Y’s interests.
F OFFICIAL CAPACITY
1 Definition An act which would otherwise be unlawful is justified if X is entitled to
perform it by virtue of the office she holds, provided it is performed in the execution of
her duties.
2 General Applying the above-mentioned definition, the clerk whose duty it is to supervise
the exhibits in court cases and who locks up a bundle of drugs in a chest, is not guilty of the
unlawful possession of drugs which are exhibits in a court case; the official whose duty it is to
confiscate liquor or a dangerous weapon in terms of a court order does not commit malicious
injury to property, and the police official who searches an arrested or suspected criminal does
not commit assault or crimen iniuria.
________________________
150 See Snyman 1996 THRHR 106 for a more detailed discussion of these requirements.
108
SNYMAN’S CRIMINAL LAW
Even where a government official acts in her official capacity in terms of an Act which is
not binding on the state, her otherwise unlawful act may still be justified by her official capacity.151 An Act which is not binding on the state may nevertheless still be binding on its
officials, unless the Act either expressly or by implication authorises the official to contravene
its provisions in certain circumstances.152 Thus, for example, it has been held that a post office
official who exceeds the speed limit in her official vehicle whilst doing her rounds collecting
post from post-boxes does not act unlawfully if she would not otherwise be able to complete
her work in time.153
An instance of official capacity serving as ground of justification is where a police official
assaults or even kills somebody in the course of arresting or attempting to arrest such a person.
Because of the importance of this subject it is discussed immediately below under a separate
heading.
G USE OF FORCE AND HOMICIDE
DURING ARREST
1 General If a police officer or any other person authorised to make an arrest (hereafter X)
arrests a criminal or an alleged criminal (hereafter Y), or attempts to arrest such person, and Y
resists the arrest or flees or tries to flee, the law allows X, within certain limits, to use such
force against Y as is reasonably necessary to overcome Y’s resistance. X will then not be
guilty of assaulting Y. The arrest must of course be lawful. The question of who is authorised
to make an arrest, under which circumstances and in which way, will not be discussed here.
These matters are set out in detail in sections 38 to 48 of the Criminal Procedure Act 51 of
1977. The justification for the use of force, or even homicide, by someone who is arresting
another, is governed by statute, namely section 49 of the Criminal Procedure Act. The previous wording of section 49 was declared unconstitutional by the Constitutional Court in Ex
parte Minister of Safety and Security: in re S v Walters.154 In 2003 a new wording for section
49 came into effect155 and in 2012 the wording was amended again.156
2 Wording of section 49 The wording of the section is as follows:
49. Use of force in effecting arrest
(1) For the purposes of this section–
(a) ‘arrestor’ means any person authorised under this Act to arrest or to assist in arresting a suspect;
(b) ‘suspect’ means any person in respect of whom an arrestor has or had a reasonable
suspicion that such person is committing or has committed an offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death and
includes, but is not limited to, shooting at a suspect with a firearm.
continued
________________________
151
152
153
154
155
156
Church 1935 OPD 70; Thomas 1954 1 SA 185 (SWA); Huyser 1968 3 SA 490 (NC).
De Bruin 1975 3 SA 56 (T). Cf also Reed 1972 2 SA 34 (R).
De Beer 1929 TPD 104, but see Fourie 2001 2 SACR 674 (C).
2002 2 SACR 105 (CC).
S 49 was amended by s 7 of the Judicial Matters Second Amendment Act 122 of 1998.
By s 1 of the Criminal Procedure Amendment Act 9 of 2012.
UNLAWFULNESS (JUSTIFICATION)
109
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or
flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is
being made, and the suspect cannot be arrested without the use of force, the arrestor may,
in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing. but, in addition to the requirement that the force must be reasonably necessary and
proportional in the circumstances, the arrestor may use deadly force only if–
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.
3 Three basic requirements set out in section 49 For the defence described in section 49
to succeed, the following three basic requirements must be complied with:
(a) the requirement that the act be essential;
(b) the requirement of proportionality; and
(c) the requirement that
(i) Y must pose a threat of serious violence or
(ii) X must have a suspicion that Y had committed a crime involving serious bodily
harm in the past.
Each of these three requirements will now be discussed.
4 X’s conduct must be essential As with private defence, two of the most important
requirements for a successful reliance on the defence created in section 49 are the requirements that X’s conduct should be essential and the requirement that the conduct should be
proportional. The requirement that the conduct should be essential means that X’s conduct
should be the only way in which X can effect Y’s arrest. This is apparent from the words “the
suspect cannot be arrested without the use of force” and “use such force as is reasonably
necessary” in subsection (2).
If there is any other way in which Y’s arrest can be effected without using force, X cannot
rely on the protection of section 49. X may not shoot at or assault Y during the arrest, if it is
possible for X to arrest Y without the force referred to. If, for example, X knows where Y
lives and it is possible for X to arrest Y there without the use of force, she should arrest Y at
Y’s house. Furthermore, before firing at Y, X should first warn Y verbally that, should Y not
stop fleeing, X will fire a shot at her. (“Stop or I’ll shoot!”) If such verbal warning does not
have the desired effect, X ought, depending on the circumstances, first to fire a warning shot
in the air or the ground. If this also does not have the desired effect, X ought first to fire at Y’s
legs, as opposed to her body.157
5 Requirement of proportionality The requirement of proportionality is expressly incorporated into section 49. It means that the nature and degree of force applied by X should be
proportional, not only to the seriousness of the crime which Y is suspected of having committed, but also to the degree of danger that Y’s conduct during the arrest poses for the safety of
X and other members of society.