Introduction Lecture

- What is Criminal Law

o Branch of public law that governs criminal conduct by individuals against S
o Laws that are distinctive that govern conduct of citizens
- How is it distinct from delict / civil law
o Criminal Law is a vertical relationship whereas Civil is private horizontal disputes

Alina Starosta – 083 389 2538, 011 717 8536/62

Room 205 Wits Law Clinic

NATIONAL LAW

SUBSTANTIVE PROCEDURAL

PUBLIC PRIVATE EVIDENCE CRIM. PROC. CIVIL PROC.

Procedural – setting out the method by which substantive laws are enforced
Substantive – deal with creation, operation, extinction of rights and duties
Public – vertical relationships, S v [individual]
Criminal – states responsibility to prosecute crime & punish offenders
Tax
Administrative
Constitutional
Private – horizontal relationship, [individual] v [individual]
Delict
Family
Property** (falls under public too)

Criminal Law w. Criminal Procedure & Evidence:

• criminal law: branch of national law that defines certain forms of human conduct as crimes
o provides for punishment…
o of persons with criminal capacity…
o who unlawfully...
o & with a guilty mind, commit a crime
• proceedings are criminal/punitive : . distinguishes crim. law & proc. from delict & civil proc.
à determines the necessity of due process / fair trial

Difference between Delict & Crime:

criminal law deals with the state, the accused & the complainant
crime = conduct that is legally forbidden
^ prosecuted by state which, if successful, results in punishment
criminal law has a punitive purpose i.e. to punish
delict has a compensatory purpose i.e. status quo ante

NB: difference between wrongful & unlawful

| |
delict criminal
/ \
burden of proof: balance of prob. beyond a reasonable doubt (not beyond all doubt)
on a spectrum from possible à certain, bop falls just past possible, brd falls just below certain
/ \

conduct, wrongfulness, fault actus rea & mens rea

causation & harm/damage conduct, voluntary, causation capacity, fault

can often result in both a crime & a delict – eg. rape à crime: rape is illegal…delict: pain & suffering
BUT, not all delicts are crimes – eg. damage to property is not a crime unless its malicious/intentional
Crime (criminal/punitive) Delict
S v [accused] [plaintiff] v [defendant]
directed against public interest, directed against private individuals,
prosecuted by state by private individuals
public private
damage to society as a whole – purpose: to purpose is to compensate because of damage done to
punish offender the person harmed
(among other purposes – S v Zinn – retributive,
preventative, deterrence, reformatory)
state prosecutes irrespective of complainant’s injured/aggrieved party can choose whether or not to
desires – charges will only be withdrawn if claim damages
there’s a lack of evidence (in theory)
guilt beyond a reasonable doubt guilt on a balance of probabilities
- in favorum libertas

Definition of Criminal Law

• branch of national law that defines certain forms of human conduct as crimes, and provides for
the punishment of persons (with criminal capacity, who unlawfully and with a guilty mind)
commit crimes

Victim’s Rights:
• Victims are not parties to the dispute however, they do have certain rights, which include;
o right to be kept informed
o right to be present when decisions that affect them are taken
o right not to be subject to demeaning cross-examination
• Victim Impact Statements – consequences of any kind, suffered by the victim
o increasing importance in sentencing
o reflect:
§ the effect of the crime on the victim
§ the circumstances surrounding the crime
§ the perceptions of victim (and family) on appropriate sentence
o Tabethe – victims have an inalienable right to convey emotions/feelings/convictions

Accused’s Rights
• The arrest, trial & punishment all interfere with the wrongdoer’s human rights, incl;
o s35 – due process
o s11 – life
§ historically – this was not a right in need of protection i.e. capital punishment
§ many legal systems made exemptions to this right i.e. self-defence
o s12 – freedom & security of the person
§ torture/slavery can never be justifiable
o s10 – dignity
o s14 – privacy
o s16 – freedom of expression
o s9 – equality

• In limiting these rights, a two-stage limitations inquiry needs to be adopted

Principle of Legality
Cornerstone of the Principle:
1. Nullem Crimen Sine Lege - ‘there can be no crime w/out law’
a. a crime must have existed before the seemingly criminal conduct was committed
b. convictions are only secured for clearly defined & pre-existing crimes
c. organizing principle of crim. law, core of RoL & basic to respect for human dignity
d. enshrined in s35(3) of BoR
The Rules:
1. Ius Acceptum – s35(3)(l)
a. one can only be found guilty of a crime if it was recognized & accepted at the time
2. Ius Praevium – s35(3)(l)
a. PRESUMPTION AGAINST RETROACTIVE/RETROSPECTIVE CRIM. LAW
b. one can only be found guilty if the act performed was illegal
c. one cannot be convicted unless the prohibiting law precedes the conduct
d. there is a right not to be subjected to retrospective criminal provisions
e. courts cannot create new crimes – this is the job of the legislature
3. Ius Certum – s35(3)(a)
a. law/definition/nature of crime must be certain
b. must be informed of wrongdoing in a way that is not vague
c. must simply be known that conduct is punishable – not necessary to know punishment
d. Savoi – vagueness becomes an issue with the operation of the limitations clause
e. Von Mollendorf – laws should be as fixed as possible so that crimes strictly laid out
4. Ius Strictum
a. in favorum liberates – entire principle of legality stems from this
b. must give the benefit of the doubt because crimes should be interpreted narrowly
5. Nulla Poena Sine Lege
a. punishments must be clearly prescribed by law in advance
b. integral in distinguishing a crime, from other forms of wrongdoing
c. punishment may vary depending on aggravating/mitigating circumstances
d. s35(3)(n) – convicted person is entitled to least severe of prescribed punishments

Masiya wrt. the Principle of Legality:

• CC majority – ‘common law definition of rape not unconstitutional, because it criminalizes
unacceptable conduct, but it should be developed to include anal rape of a female’
o anal penetration of a male was excluded because:
§ principle of legality – courts cannot extend common-law definition of crimes
§ developments fall under the legislature’s authority
§ rape is historically a crime against women (male supremacy)
o principle of legality 2 – ius praevium – there should be no retrospective criminal law
o masiya couldn’t be convicted – there was no predefined crime – ius acceptum
§ he should not ought to have foreseen that his conduct would constitute rape
• CC minority – agreed with majority, save for the fact it shouldn’t be extended to include males
o merely a re-categorization from indecent assault à rape
o protecting men will not jeopardize the protection of women
o vulnerable groups are inclusive of homosexuals, young boys & prisoners
• Snyman critique of the CC
o overstepped judicial function & violated principle of legality
o extension of a crime by the courts leads to legal uncertainty

o reliance on emotional considerations

o argues vaginal and anal penetration should be separated à possibility of pregnancy
• Phelps critique of Snyman
o CC didn’t go far enough in bringing the definition in line with the Constitution
o doesn’t infringe principle of legality à doesn’t prohibit any development
§ new forms of behaviour can be brought within old common-law definitions
§ courts have a duty [s39(2)] to interpret common-law inline w. the Constitution
o common-law definition was unconstitutional prior to case
o definition unjustifiably discriminates against men & boys (concurs with minority)

Retrospect/Prospect wrt. the Principle of Legality:

• where the common-law is silent on the range of a reasonably defined crime à
courts have included new circumstances within the old criminal definition
• where case law specifically excludes devt. of criminal law à
left to legislature
• if the definition of the offence specifically excludes certain conduct as punishable à
any judicial extension to include that which is excluded contravenes principle of legality
• must be weary of s8(3) & s39(2) à must develop common-law & promote spirt purport…
o courts must be able to develop common-law inline w. BoR to give effect to ^
o however, doesn’t give courts carte blanche power to develop crimes
o development can only take place to give effect to / promote spirt & objects of BoR

Theories of Punishment:
• Punishment is traditionally the deprivation of liberty / infliction of suffering
• When punishing the courts must consider:
o Crime – degree of harm/violation
o Criminal – personal circumstances
o Societal Interests – society must either be protected from the criminal or deterred from
the commission of a crime
• There are two branches of theories of punishment
o ABSOLUTE THEORY
o Punishment is an end in and of itself, it is the criminals’ just dessert
§ Retributive
• restoring the legal balance which has been served by the
commission of a crime
• each person is afforded protection of the law, so long as they fulfil
their obligations to not impede on rights of others
o an unfair advantage arises when one impedes on rights of
others – no longer deserves protection of the law
• free people can be held liable for their choices, so long as they were
made voluntarily (free will is attributed to all human beings)
• punishment = retribution
• degree of punishment must be directly proportional to the degree of
harm
• disturbed balance in legal order à punishment will restore it
• backward looking i.e. offender has earned his punishment
• “if you’re gonna do the crime, you gotta do the time”
o RELATIVE THEORY
o Utilitarian approach – punishment has a secondary purpose; a means to an end

§ Preventative
• punishment will prevent re-offense & re-occurrence
• reinforces the need to be law-abiding
§ Deterrence
• > 1 person refrain/desists from prohibited
• individual deterrence: prevention of actual offender recommitting
• general deterrence: prevention of community of committing the crime
• more specific end = deter offenders from committing the crime
• issue: needs a high probability of being caught to be effective – based
on the appreciation of apprehension by criminals : . doesn’t work if
there’s ambiguity
o eg. breathalyser – initially reduces rate of drunk driving, but
the risk of getting caught and charged isn’t high enough to
deter from driving drunk
§ Reformative Theory
• the idea that offenders should be able to re-enter society
• usually suitable for juveniles
• S v Zinn
o talks on the theories of punishment – must consider the nature of the crime, the
offender and the greater community interest
o mercy as an element of justice – punishment too harsh / lenient doesn’t serve the
interests of the accused or of society

Restorative Justice Models

• Restorative Justice processes emphasize non-punitive / less punitive dispute resolution
o Seeks to involve the victim, offender & community members
o Directed at restoring parties to prior condition that was disturbed by the crime
o Tries to promote victim empowerment
o Has a role in identifying ‘substantial & compelling’ reasons not to impose prescribed
minimum sentences (Tabethe)
• Crux of RJ = mediation
• Tries to reach solutions outside the criminal justice system (liberal approach)
• Doesn’t believe in undue punishment
• Based on respect and dignity for victim and offender
• Uncertainty regarding appropriateness/applicability
o Pre-reporting phase
o Pre-trial phase
o Pre-sentence phase
• Models of RJ
o victim/offender mediation
o family victim & offender group conferences
o dialogue, peace, sentencing circles
• Hopes to achieve:
o prevent re-offenses
o victim & offender catharsis
o benefit criminal justice system – overcrowding in prisons
o enhance community involvement to resolve disputes

The Circumstances of Changes to Criminal Law

1. the necessity to protect / promote HR & interests
2. the necessity to keep / fulfil broader interests & greater bones mores
3. unique situations specific to a particular country

General Elements of Criminal Liability

Crime = Actus Rea + Mens Rea

Actus Rea: (must be a human act) Mens Rea: (mental state of the accused)
[all 4 elements must be proven by the state] [both elements must be present –
1. conduct in the form of a commission/omission without capacity, there can be no fault]
2. voluntariness 1. capacity
3. causation that is both factual/legal a. ability to appreciate
4. unlawfulness/wrongfulness between right & wrong i.e.
defences to a crime i.e. even though insight
it was unlawful, b. ability to act in accordance
these are the grounds of justification with this appreciation i.e.
a. private defence self-control
b. necessity 2. fault i.e. state of mind –
c. consent blameworthiness
d. impossibility a. dolus (intention)
e. superior orders i. directus
f. public authority ii. indirectus
g. disciplinary chastisement iii. eventualis
h. de minimus non curat lex b. culpa (negligent)

circumstance crime – criminalizing conduct, not consequence

consequence crime – result of consequence, not the conduct itself
** the conduct doesn’t always have to be completed to be found liable for a crime i.e. attempts


Conduct – Commission
- punishable crime = manifestation of evil mind + conduct that matches the definition of the crime
- conduct of a consequence crime = human movement + subsequent consequence
- conduct of a circumstance crime = human movement
- mere thoughts are not punishable, if there is no external conduct, there is no liability
• impossible to prosecute a mental act (can’t prove the existence thoughts)
• impossible to punish every person with unsavoury/criminal thoughts
• reluctance by the state to impose criminal sanction on people whose thoughts don’t
bring about any tangible harm
• difficulty in distinguishing between a day dream and a fixed intention to commit a crime
- a crime doesn’t have to be complete to be punishable (i.e. attempt)
• must be an element of planning à beyond a simple thought
• the slightest manifestation of conduct is sufficient
§ eg. merely uttering words
• conspiracy – agreeing with another to commit a crime
• incitement – any communication intended to influence another to
commit a crime
§ eg. active association
• common purpose
- to the extent that there is no definitional element to a crime – all general elements must exist
- need to look at definitions of a crime to see what conduct would constitute that crime
• very specific definitions are outlined in common-law / legislation

Conduct – Omissions
general principle from Maweza / Ewels:
there is no duty to act positively to prevent harm unless there was a duty imposed, on the accused,
to act [the motivation for this is the aim to maximize individual liberty]

- being found guilty is based on: not doing something despite a duty to do that thing
- an omission is only punishable if there exists a legal duty requiring one to act
- closely linked to wrongfulness/unlawfulness
• failing to act as a general principle is not wrongful/unlawful ß Ewels
• usually, there is no presumption of unlawfulness if there is no conduct

- THE DUTY TO ACT (i.e. when not doing something will amount to a violation of the law)

- pre ’57, omission could only be unlawful if there was prior conduct
• i.e. something was done that created a potentially dangerous situation which created
the duty to act
• this is a mixture of commission & omission à the duty to act only arises, if something
was done prior to create a dangerous situation, that would require a person to
accordingly prevent harm
(creating the situation = commission; failure to prevent = omission)

- emergence of crystallized categories from judicial precedent

• Category 1: PRIOR CONDUCT
§ when the accused has created a potentially dangerous situation – he is under
a legal duty to prevent the danger from materializing
§ this is a combination of +ve & -ve duties: omissio per commissionem
§ R v Miller –


• failure to put out a lit cigarette before falling asleep, which created a
potentially dangerous situation
• awoke to smoke, simply moved rooms and went back to sleep
• : . had a duty to act and did not à held liable
§ Halliwell v JHB Municipal Council –
• cobblestones became smooth resulting in harm caused to plaintiff,
• council was held liable because of their duty to maintain the roads

• Category 2: CONTROL OF A DANGEROUS ANIMAL/THING

§ where an accused assumes control over a dangerous animal/thing, there is a
legal duty on the accused, to guard against it causing harm
§ no obligation to assume control, but if control is assumed voluntarily, then the
duty to act arises
§ eg. possession of a firearm and failing to take precautions to keep it out of
reach of unauthorized persons
§ S v Fernandez – baboon case
• shop owner notices baboon is out of its’ cage – arms himself and
persuades the baboon to get back – attempts to fix the cage – baboon
escaped again
• took a child from the streets, bit it and in reaction to shots fires throws
child to the floor, killing it.
• ISSUE: should shopkeeper be held liable (wasn’t the owner)
o accused was in material control of baboon – under a duty to
ensure that the animal would not cause harm
o reasonably – the baboon should’ve been restrained
o fact that he armed himself in the first instance showed that he
had knowledge that it was a dangerous animal
• the omission of not securing the baboon while having the duty to
prevent harm by the animal (because he was in control of it) resulted
in criminal liability
§ eg. Ted Bundy
• police had duty to ensure that he didn’t escape trial, but managed to
jump out the window
• if he killed someone, should the state be liable for not controlling a
potentially dangerous object/thing?
• cops were in control of Bundy – by failing to have him secured at all
times, the state should be liable as there was a duty to act, but omitted
to do so
§ R v Eustace – accused has duty to control their dog
• found guilty of culpable homicide because the dog killed someone
• act or conduct must be human, but if the crime is committed
instrumentally through an animal it is still human

• Category 3: SPECIAL PROTECTIVE RELATIONSHIP

§ where an accused assumes a protective role over another, they have a duty
to protect that person from harm
§ eg. through office, biology/familial relations, relationships, instances (infant,
senile, mentally ill), being the only one able to help
Police
• government is kept accountable through constitutional duty to protect
o protect right to freedom from violence


o protect right to bodily integrity & freedom of security of person

§ Carmichele
• police have a constitutional duty to protect the public in general from
violent crime
• ^ could also have been founded on common-law protective
relationship
§ Ewels
• on-duty police officers have a duty to act because the beating
occurred in the station, which created an extra special protective
relationship
• random assault in presence of police officer
§ Skosana
• police in custody of an ill prisoner and failed to take the prisoner to the
doctor timeously and the prisoner died as a result
• omission was failure to attend to a medical necessity, whereby the
police were held liable due to the special protective relationship
§ Govender
• fatal assault of a prisoner in police custody
• held that police had a legal duty to prevent it from happening
• police officers who did not participate were held liable

Protective Relationship other than Police (specified in Chenjare)

§ S v B (dealing with minors – don’t want to reveal identity w surname)

• parent is obliged to save his child from harm by virtue of a special
protective relationship (which includes a non-parent if the protective
relationship is assumed by them)
§ SvA
• mother was convicted of assault for failing to prevent boyfriend from
assaulting the child
• unlawful omission due to special protective relationship
• parent will be obliged to protect a child against assult even if they’re
not the ones perpetrating the assault
§ R v Chenjare
• death of child caused by an omission
• accused in a relationship with woman, who assisted in the murder of
her child after the child was severly wounded
• where a protective relationship with a child has been assumed (eg.
with relationship with mother) a duty to protect still exists
• duty can be established through instances of
o infancy/age
o mental illness
o being able to prevent harm
o being the only one available
§ Mallaley
• eg. of an instance
• accused & other lived together
• building caught alight
• other was drinking & subsequently fell before fire started


• ^ the accused : . had a legal duty to assist, due to instance

• Category 4: PUBLIC OFFICE

§ when someone is employed in an office/position which requires them to act to
protect someone, then a legal duty to act exists
• eg. police officer, doctor/nurse, firefighter
§ deliberate failure of police to report a crime (i.e. to help perpetrator) may
render police an accessory / guilty of preventing admin. of justice
§ usually applied only if on duty – but not necessarily off the hook if liability can
be found under another category
(eg. control potentially dangerous animal/thing, special protective relationship)
§ S v Gaba
• FACTS:
o accused was a detective in the company of other detectives
interrogating a suspect (whether suspect was the ‘godfather’)
o accused was also a police officer and knew he was ^, but
failed to inform colleagues
• ISSUE:
o guilty of defeating ends of justice?
• HELD:
o guilty on basis of public office – he was required to inform his
colleagues

• Category 5: STATUTE / STATE OF AFFAIRS

Statutes that Create Duty to Act
- National Road Traffic Act – duty of person involved in accident to stop & gather details
- Domestic Violence Act – SAPS have a duty to render assistance
- Inquests Act – duty to report a death if not from natural causes
- Occupational Health & Safety Act – duty of employer to maintain safe working enviro.
- Others: road traffic, money laundering, corruption, human Trafficking etc.

State of Affairs
- unlawful conduct element of an offence must include either;
• failure by the accused to terminate the state within a reasonable time or,
• prior conduct which resulted in the state
§ circumstance crimes – situation is criminalized
• eg. possession of illegal substances
§ not necessarily dealing with an isolated direct act/omission
§ court will generally convict if,
• 1. state of affairs was not discontinued once realized
• 2. if the accused voluntarily bought about the state
§ R v Achterdam
• being drunk in public = criminal offence (1911)
• drunk man attempt to sober up in police’s garden
• police threw him out, then arrested him for being drunk in public
• HELD:
o no element of conduct/voluntariness
o drunk man didn’t bring about the state of affairs himself
o wasn’t convicted
• accused will only be liable if situation was brought about voluntarily by
accused

§ S v Brick
• illegal to be in possession of obscene materials
• accused was charged of being in possession, in contravention of
statute
• no evidence to show accused solicited the material, rather sent to him
anonymously
• accused claimed he intended to hand material over
• appeal of conviction
o majority: no good prospects of success for the accused,
because the facts clearly indicate the intentional physical
custody of the material
o minority: agreed on prospects of success, but rather because
it was more than just intended possession (if this were the
case – even cops must be held liable for possession upon
confiscation), problem is that the state of affairs was not
discontinued, for possession to be criminal – must be for the
control of the substances for own benefit
• where an accused is charged with a circumstance crime, he will have a
duty to terminate the state of affairs

• Category 6: CONTRACT / COMMON-LAW / COURT ORDER

§ legal duty to act might arise because of a contract/agreement
§ common law – if we know the law requires us to act, we have a duty to do so
(from recent cases)
§ court can order someone to act / refrain from acting

• Category 7: CREATION OF AN IMPRESSION THAT INTERESTS ARE PROTECTED

§ closely linked to contract
• eg. car accident – you stop, which creates impression to the world that
you are intending to help, therefore the general public assumes that
you are taking the responsibility to call for help etc.
§ R v Russel
• accused = carpenter; assisting a crane operator
• wire carrying 3000W electricity, switched off
• other workers switched power back on & informed accused telling him
to convey warning
• accused forgot to tell crew, and one of the members got electrocuted
when the crane touched the power line
• ISSUE: should he be held liable?
o (court tried to fit omission into prior conduct)
• HELD:
o not unreasonable to require accused to convey a message
o but by accepting warning, he had a duty to inform others –
prior conduct = acceptance
§ found liable
• critique of prior conduct – not appropriate, because he didn’t create
the danger of the electrical current – it existed with or without his
knowledge
• new argument – accused’s acceptance of the warning is some sort of
agreement that he would convey it to others

- public policy (bones mores) ß Maweza

• failure to act could be unlawful if it goes against the conscious of society
• doesn’t necessarily have to come from a crystallized category
• facts of the case
§ plaintiff’s husband was a crew member on a ship which went adrift
§ defendant knew ship was adrift but delayed sending help
§ plaintiff’s husband died on the adrift ship
§ dependant’s action based on defendant failure to act resulting in death
• held in the case
§ failure to send out help in good time was the cause of death
§ liability was based on an omission that did not fit the crystallized categories : .
was unlawful simply because a reasonable society would expect for help to be
sent out
• ^ NB: notice there is no prior conduct that created the dangerous situation – therefore
the case is fundamental to the development of liability for omissions

- legal convictions of the community

• Ewels
• FACTS:
§ no duty to act positively to prevent harm, unless there was a duty act
§ seminal judgement – leading case for omissions in crim. & delict
§ complainant gets attacked by an off-duty police officer in a coffee shop
§ officer reaches police station before complainant, and beats him further (while
on-duty police officers witnessed this)
§ Ewels sues Minister of Police for vicarious liability

• ISSUE:
§ should the state be held liable for the on-duty police officer’s conduct in the
form of an omission
• HELD:
§ point of departure for omissions = general rule
§ i.e. no duty to act in favour of anyone else, even though one could easily /
ought morally to do so
§ but, in certain circumstances, a legal duty to act will arise
§ the duty to act is not confined merely to the crystallized categories
§ law has reached a stage of development where a duty to act exists because
the legal convictions of the community say so
• legal convictions of the community are determined on a case by case basis
• to some extent, these are based on public policy, which are not concrete
• not based on morals – rather on what a reasonable law abiding follower of the
constitution would have required the accused to have acted in the circumstances
§ (where the law requires that a reasonable person would have acted)
• LCC interpretation must include values and rights protected in Const.
• LCC requiring action often arise in civil cases
§ often relating to cops failure to act à considers SA reality that cops are
underfunded and understaffed and therefore, in some cases, it is difficult to
place a duty on them, because they are often unrealistic in the circumstances
§ it is quite difficult to prove criminal liability of a cop for failing to protect citizens
from a violent crime than it is to prove civil liability à breach of legal duty is


not enough to prove culpable homicide, because negligence & causation
relative to the death would have to be proven BRD as well
• LCC are more likely to require that police should come to the assistance of someone
being beaten to death, else suffer consequence of culpable homicide, and not to
require that police should warn vulnerable people of a reasonably foreseeable risk of
injury or death


Omissions Practice Tut

- off duty cop w. 12 y/o daughter, notices gang member shadily standing around entrance of
shop, continues on his course, despite suspecting no good, called to murder scene, shop
keeper died
Q: assuming negligence and causation – is cop liable for murder?
A:
- first define murder & culpable homicide
o M: intentional unlawful killing
o CH: negligent unlawful killing
- for cop to be criminally liable, state must prove AR + MR
o AR = conduct, voluntariness, causation, unlawfulness
o MR = capacity, fault
- I - issues & presumptions
- ^ assume all elements are present, other than the element that must be proven
o assume negligence and causation from instruction
o must also assume capacity
o issue : . unlawful conduct
- P - conduct occurs either as a commission or omission, cop involved in omission
- A – cop failed to intervene, in what he perceived to be attempted crime
- P – general rule: one can only be held liable for an omission if there is a duty to act because
law regards us as autonomous individuals (Ewels)
- P – LCC require that there was a duty to act in certain circumstances (Maweza)
- P – factors that court will use to determine what the LCC are
o factors include prior conduct and other forms of crystallized categories where an
accused would have a legal duty to act
o (use relevant factors to the scenario)
§ special protective relationship
• P – if an accused has assumed a protective role w. victim, there would
be a duty to act to prevent harm (Ewels, S v B)
• A – as an off duty cop, questionable whether he has assumed a
protective role over the general public, but most definitely has
assumed a protective duty – the duty of protecting his daughter
weighs more heavily than protecting shopkeeper (off duty, and wasn’t
even sure there was a definitive threat to him)
§ control of a dangerous object/thing
• P - when accused has assumed ^, there is a legal duty to act
(Fernandez)
• A – he isn’t in control of the situation, no indication that he’s armed &
is with young daughter, therefore unlikely that LCC would require him
to act
§ public office
• P – where an accused is on duty & acting in pursuance of occupation,
there is always a duty to act in favour of others (Govender)
• A – even though he’s a cop, he is off duty at the time, therefore
unlikely that he would be required to act on his day off in his ordinary
course
- C – probably should have called it in, but there is little considering policy that would require him
to act


Voluntariness

- part of the actus reas

- subjecting your bodily movements to your own conscious will
- predicated on free will; governed by the doctrine of choice
o convictions are fair because the accused acts out of their own free will
- not about motive or rational decisions: rather, whether one has control over one’s physical faculty

when there’s an omission à how can we say an omission is voluntary?

- was the omission created subject to the accused lacking the ability to subject bodily movements to his own
conscious will?

**automatism – not being able to subject your body to your own conscious will i.e. involuntariness
1. reflex movements & spasms (mechanical activity)
2. unconscious acts
3. acts during sleep / near-sleep state
a. Dhlamini
4. heavy intoxication (dead drunk)
a. Johnson, Chretien
5. application of superior force
Absolute Force = physical force operating on the body accused
Ø person would not be able to subject his body to his will because of real muscular/ physical inferiority
Relative Force = threat operating on the mind of the accused
Ø person would be able to subject his body to his will but doesn’t due to a real potential threat imposed on him
S v Goliath
- two accused came upon deceased
- accused 1 stabbed deceased, and ordered 2 to tie him up
- 2 refused, and 1 threatened 2 – 2 tied him up, 1 stabbed him 12 times
- 1 charged for murder (was convicted)
- 2 charged for being an accomplice
- WAS 2 ACTING VOLUNTARILY?
o relative force – there was a threat imposed on 2
o 2 acquitted on grounds that he was operating under threat of 1
6. suffering from
a. concussion
b. epilepsy
i. Mkhize, Victor, Schoonwinkel,
c. hypoglycaemia
i. Van Rensburg
d. hysterical disassociation (insane automatism)
i. Mahlingza, Kok
e. blackout
i. Trickett

even mentally ill people without capacity to be held criminally liable can still act voluntarily if they can subject their bodily
movements to their own conscious will

NB!! – make sure knowledge of facts of each case are sufficient, some have very minor discrepancies – don’t get caught out

IF YOU CANNOT APPRECIATE THE WRONGFULNESS OF AN ACT,

YOU CANNOT ACT IN ACCORDANCE WITH A NON-EXISTENT APPRECIATION

involuntariness is not concerned with capacity, it is concerned with the ability to subject one’s bodily
movements to one’s conscious will
i.e. not the cognitive ability to know that conduct is wrongful but rather the conative ability to act in
accordance with the knowledge that the conduct is wrongful

Sane v Insane Automatism (authority from Kok)


Sane à accused is mentally sane, but momentarily (at crucial moment) behaves w/out voluntariness
Ø eg. epilepsy/hypoglycaemia: at the time of an attack/fit, despite being mentally well, bodily
movement cannot be controlled through conscious will
Ø in a state of sane automatism – conduct is negated
o onus of proof rests on the state to disprove involuntariness beyond reasonable doubt
o accused has an evidentiary burden (not an onus of proof) to raise sane automatism
on a balance of probabilities
Ø if you succeed – you will be fully acquitted

Insane à accused suffers from a mental pathology/illness

Ø dealing with capacity (mens rea), which has nothing to do with conduct
Ø onus on the accused to prove mental illness
o all citizens are presumed to be mentally sound
Ø doesn’t result in full acquittal, found not guilty BUT will be incarcerated in a mental institution

S v Mahlingza (INSANITY i.e. MENTAL ILLNESS)

- accused killed 6mo child, seemed as though severe postpartum depression was present
- courts term this “hysterical disassociation”
o can manifest in different ways from people
o mental break
- charged with murder / culpable homicide
- found not guilty due to mental illness
o incarcerated in mental institution until such time that she was no longer a threat to
herself or others
- Ratio
o sane automatism: momentary malfunctioning of the mind caused by an external factor
o insane automatism: internal mental illness
- possible for a sane automatic state to become a mental illness

R v Dhlamini
- Dhlamini was sleeping on the floor, where deceased bent over him to pick up a mat
- Dhlamini stabbed and killed deceased, reacting to a bad dream
- ISSUE: was accused acting voluntarily?
o deceased & accused on good terms: no indication of any motive to kill
o accused was acquitted of all charges because he was acting in a state of sane
automatism (somnambulism)

R v Mkhize
- accused suffered from epilepsy & charged with murder of his sister
- cutting meat with a sharp knife & had an epileptic fit, stabbing his sister
- no evidence on facts that accused had a warning of an oncoming attack

S v Kok (INSANE i.e. MENTAL ILLNESS)

- charged w. 2 counts of murder & 1 count of attempted murder
- accused = superintendent at SAPS
- Kok drove to Botha household; shot Mr & Mrs, killing them
- son emerged from bath after gunshots, Kok pointed shotgun at son but managed to escape
- defence: “mental illness : . lacking criminal capacity”
- psychiatrist expert evidence:
o diagnosed with MDD and PTSD from events witnessed as a cop
o disorder characterized by dissociative re-enactments (i.e. home invasions)
o no psychotic illness : . sane automatism (temporary state)


- HELD:
o SANE - not a psychiatric term – rather a legal term to describe something other than
mental illness or defect i.e. involuntariness due to an external factor
o INSANE – internal factors operating on the individual
o if suffering from sane automatism; onus remains on state to prove voluntariness BRD
o if accused claims mental illness; onus is on accused to prove MI on BoP
o court stated that it can’t rule on what condition accused has - however, clear that
condition impacted capacity (i.e. mental state) and not his voluntariness
§ eg. PTSD – usually AD’s prescribed, can become psychotic w/out treatment
o not guilty, because of MI and incarcerated in an institution until he was no longer a
threat to him or others – s78(6) Criminal Procedure Act

Antecedent Liability (AL) – base to hold one liable despite sane automatism
(not to be confused with prior conduct – there was conduct, unlike prior conduct in omissions)
^ there was
conductàààààààààààààunlawful consequence

was there a time, right before the sane automatic state, where actus & mens reas coincided?
^ was there both conduct & blameworthiness?

R v Victor
- charged with reckless and negligent driving
- accused suffered from epileptic seizure, and as a result collides with a pedestrian & vehicle
- conceded that accused previously had attacks while driving, but no-one was ever hurt
- seizure negated his voluntary conduct…but…
- courts 2 bases for AL
o if accused had warning signs & was negligent in continuing to drive
§ didn’t succeed in proving antecedent conduct due warning signs
o even without warning signs, accused was epileptic with prior attacks, including while
driving à knew the danger of driving if attack occurs: sufficient antecedent conduct
- there was a time immediately prior to sane automatic state where AR & MR coincided à AL

R v Schoonwinkel
- charged with culpable homicide due to car accident, killed 2
- defence: involuntariness – epileptic fit : . blank mind
- suffered from rare form of epilepsy: full symptoms hadn’t presented (only 2 minor attacks)
- acquitted & distinguished from Victor – no basis for AL

S v Van Rensberg
- charged with reckless & negligent driving
- defence of low blood sugar (doctor didn’t advise accused that he shouldn’t drive)
- drove without knowledge of possibility of drowsiness & subsequently collided
- court couldn’t prove antecedent liability BRD that accused drove despite clarity of exhaustion:
a reasonable man in his position wouldn’t necessarily have foreseen a sudden drop in sugar
levels.

S v Trickett
- young physically/mentally healthy woman
- involved in car accident, where car swerved into the opposite side of the road
- argued: “defence of involuntariness: blackout” no medical expert evidence, only her testimony
- court found testimony to be honest, but insufficient strength of defence
- state has burden of proving guilty BRD


- evidentiary burden on accused arises when raising automatism, on BoP
- Principle:
o medical or other expert evidence is necessary to establish involuntariness on a BoP
o raising automatism is not enough – need some kind of evidence to establish likelihood

How Voluntariness is Affected by Intoxication (separate topic)

- Historically (pre ’81 – S v Johnson)
o voluntarily becoming intoxicated will not be a full defence if you committed a crime
while intoxicated (partly based on AL)
o ^ only applicable if one drank intentionally to get courage to commit a crime
o if one drinks merely to get drunk without any intention – harder to prove AL
o can’t be a full defence based on grounds of policy

Facts:
o accused was arrested for being drunk in public,
o placed in a cell with another elderly man
o accused killed man in a fit of rage with a metal bucket
Held:
o likely that accused was so intoxicated that he lacked voluntariness
o on policy grounds – court was prepared to convict him of culpable homicide
o ^ acting negligently on grounds of being so intoxicated
o may not have had specific intent – but culpable homicide only needs ordinary intent

- From ’81 – Chretien

- confirms that mild to severe intoxication can impact on the formulation of intent
- dead drunken state à can negate voluntariness
- trial court acquitted accused of murder, attempted murder and common assault
- referred to appeal court: was trial court correct in acquitting him?

Facts:
o accused at a party, consumed large amounts of alcohol (wasn’t ‘dead’ drunk)
o during party there was some discontent – in drunken rage, accused sped off in car
o drove into a group of guests, killing 1 and injuring 5
Defence:
o in his state – he believed the people would move out the way
o intoxication affected his ability to formulate intention
Held:
o overruled Johnson: severe intoxication which is tantamount to being “dead drunk,” can
negate voluntariness – no question of liability = acquittal
o however, clear accused wasn’t dead drunk – his ability to formulate intention was
impaired

CURRENTLY –
defence of being dead drunk is better to establish lack of fault/capacity rather than involuntariness

Intoxication
- affects several elements
o voluntariness
o intention
o capacity (in theory)
o unlawfulness

not covering in 2018 – intoxication’s effect on capacity


capacity = accused able to appreciate between right/wrong & act in accordance with appreciation
^ drunk people can’t translate their conduct
any person, drunk to any extent can argue they weren’t acting in accordance with their appreciation between right/wrong
^ Criminal Law Amendment Act prevents using lack of capacity as a defence to intoxication
^ parliament has made it an offence based on policy grounds

Voluntary Intoxication

intoxication & its’ effect on voluntariness

Johnson (pre-81)
Ø accused put in jail for being drunk in public
Ø put in a cell with another person
Ø became enraged, beat other person to death with metal bucket
Ø liable for CH
o based on policy – drunk accused should still be liable for something
o law contemplated that intoxication could potentially affect fault
§ there is something blameworthy about getting drunk & committing crime
o avoided the issue of involuntariness

Chretien (’81)
Ø still applicable today
Ø facts:
o gets in car after drinking at a party
o drives into a group of people “thinking that they would move out of the way”
o clearly negligent, but assault requires dolus
§ no one died, so can only be charged with fault
§ his intoxicated state could make him genuinely believe that they would move
• fully acquitted
Ø technically intoxication can affect voluntariness & can be a full defence if the accused was
“dead drunk”
o is arguing “dead drunk” not saying that you lack capacity?
§ lack of capacity is inexcusable under the Criminal Law Amendment Act
o involuntariness isn’t a good defence, because if proven you’re still convicted under the
Act
o NB that it was decided before the Act was implemented, that’s why involuntariness
passes in this case
Ø only plausible defence for a drunk accused is lack of Mens Rea
o intoxication, which is to a lesser degree to being dead drunk
§ accused’s ability to formulate intent might be compromised
o slightest intoxication may affect ability to foresee
Ø crux of Maarohonye
o Jubjub & friends were heavily intoxicated with cocaine
o decided to drag-race, kids were on the way to school, crashed into them
o trial court found them guilty of murder
§ para 10 – didn’t consider the fact that they were intoxicated
o on appeal à set aside
§ could intoxication negate fault…
§ was there subjective foresight of the possibility of death? & did they reconcile
themselves?
§ drug induced state of mind has a direct influence in how their conduct should
be judged
• drugs induced euphoria – sense invincibility, wouldn’t have foreseen

Involuntary Intoxication –
someone induces you to ingest a substance, without you knowing that it will affect you

Hartyani
Ø voluntarily drank 4 beers & coffee
Ø coffee was laced coffee with brandy unbeknown to him
Ø didn’t realize coffee had alcohol because he had the 4 beers prior
Ø state accepted that he couldn’t appreciate the wrongfulness of his conduct
Ø involuntary intoxication can possibly affect fault & voluntariness
Ø now, voluntariness wouldn’t suffice because of the Criminal Law Amendment Act

Intoxication’s Effect on Culpa

- what is the standard?
- can you say what would a reasonable drunk man do?
o NO – reasonable men get drunk & commit crimes


Causation

CAUSATION = FACTUAL CAUSATION + LEGAL CAUSATION

Circumstance Crime – causation is N/A

conduct / state of affairs is prohibited: rape, possession
of drugs, reckless/negligent driving

Consequence Crime – causation applicable

conduct isn’t necessarily criminal, but if it leads to an
unlawful consequence it is criminalized
^ conduct and consequence must be causally linked

Factual Causation = condictio sine qua non (“But For”
Test) – scope of liability is cast very wide
- “but for” the accused’s conduct, would the
victim have died when he did?
o i.e. if the accused’s conduct didn’t
occur – would death have happened
then?
- +ve conduct (commission) = hypothetical
elimination of conduct
o A shoots Bàif A didn’t shoot B,
would B die?
§ if no: A was the condition
upon which B’s death was
based
- –ve conduct (omission) = hypothetical addition
o A digs hole, w/out sign, B falls in and
diesàhad sign been put up, would B
have died?
§ if no: A’s failure to act is
the factual cause of B’s
death
Legal Causation = aimed at limiting liability i.e. must
determine who is sufficiently closest cause of death
Mokgethi –
the three tests are merely factors that should be
considered to make a POLICY (LCC + const. + law)
decision whether the conduct lead to the unlawful
consequence, none of the tests in isolation are
conclusive
**policy considerations must concern liability in some
instances**
FACTS
o accused = robber, robbed a bank –
shootout ensues
o victim worked at bank, injured and
taken to hospital – becomes
paraplegic
o victim recovers and goes back to
work, gets pressure sores from
negligence, dies from blood
poisoning
FOUND
o not liable

1. Proximate Cause Test – who/what, in terms of

space & time, is the most direct cause of death
2. Adequate Cause – in ordinary course of
human experience, does accused’s conduct
cause the unlawful consequence
3. Nova Causa Intervenis – was there a new
intervening event that breaks the chain of
causation
a. new event must be
unusual/abnormal/unsuspecting – if
something is foreseeable this is N/A
b. new event must be independent of
accused’s conduct
c. new event must be factual cause in
and of itself
(all three criteria must be met)

To prove causation BRD, the state must prove both FACTUAL and LEGAL CAUSATION

Factual Causation i.e. the ‘but for’ test

- need to establish the conduct that is legally relevant
- for a commission: hypothetical elimination
- for an omission: hypothetical addition/substitution
- casts a very wide net of possible factual causes of death
- factual cause doesn’t necessarily mean that there will be liability

How does it apply?

Ø Minister of Police v Skosana
Facts:
- Skosana was arrested for drunk driving after being involved in an accident
- next morning started complaining of severe pain & asked to see doctor
- police take S to doctor 2hrs later: doctor says to rush S to hospital, possible ruptured bowel
- 3hrs later: S arrives at hospital, had ruptured bowel, emergency operation – died on table
- surviving spouse wanted to sue Min. of Police for vicarious liability

Issue:
- did delay (i.e. omission by police) cause S death?
Held:
- plaintiff needed to prove BoP, “but for” omission of police, would S still have died
- applying the “but for” test
- was proven that delay of police was factual causation of death

Ø Van den Berg

Facts:
- lorry driver carrying passengers drove very close to train track
- one of the passengers jumped off out of fear – died as a result
Issue:
- would there still be causation?
- positive conduct: hypothetical elimination of negligent driving
Held:
- had driver not been driving negligently, fear wouldn’t have been present, wouldn’t have jumped
therefore wouldn’t have died
- rather inconclusive
- What if the “but for” test yields a –ve result? (i.e. FC can’t be proven BRD using “but for”)
o eg. simultaneous killing w/out common purpose
o ^ if “but for” yields a –ve result;
o then ask, ‘did the accused materially contribute to the unlawful consequence/result?’
o ^ if yes – factual causation exists

Ø S v Grotjohn – suicide case

***case authority for MATERIAL CONTRIBUTION
Facts:
- accused charged with murder of manic depressive wife
- accused provided wife means to commit suicide
Issue:
- can accused be liable?
Held:

- court a quo – acquitted

- court of appeal
o “but for” accused not handing her the gun, would wife still be alive?
o inconclusive & uncertain à cannot be proven beyond a reasonable doubt
o FC requires unequivocal result: use “material contribution” – then yes, he was the FC

Ø S v Van As
Facts:
- police officers came to arrest Mokoena (while with 5 children in his care)
- children ran away on arrival on cops out of fear
- children hid, and because of exposure to the elements, 2 of the children died
- officers charged with culpable homicide of 2 kids
Issue:
- failure to conduct a search party, i.e. omission: HYPOTHETICAL ADDITION
- can cops be held liable?
- cops prior conduct: frightening kids by arresting M
- cops special protective relationship: cops have a duty from LCC
- HAD POLICE CONDUCTED BETTER SEARCH, WOULD CHILDREN STILL BE ALIVE
Held:
- court a quo – convicted officers
- court of appeal – couldn’t unequivocally prove that cops’ omission was the cause
o couldn’t convict cops because they failed to prove the case BRD
Critique:
- why not apply “material contribution”

Ø Minister of Police v Lee

Facts:
- accused was imprisoned for 5 years, in large cells with minimal room to breathe
- got TB in jail à sued state for contracting TB in jail due to poor screening, testing & treatment
Issue:
- but for prisons omission, would he have contracted TB?
Held:
- SCA: couldn’t be proven BRD that he wouldn’t have contracted TB had the prison acted
diligently
o eg. what if he was infected by someone with latent TB?
- PROBABLE FC: based on a policy decision
o although actual source of TB can’t be established, system in place was not fully
appropriate à more probable than not that he wouldn’t have got TB had the system
been adequate
§ is this different to “material contribution?”
• could arguably just simply say that the prison’s useless system
materially contributed to the contraction of TB

Legal Causation
(based on a totality of factors, not only the 3 primary “tests” which are also just factors - Mokgethi)
^ policy may override the 3 tests: policy may dictate the manner in which tests are approached

Proximate Cause (Hartman): proves LC

is the accused’s conduct the closest cause of death in terms of space & time?
closest cause in terms of value & time: usually the last person to deal with the deceased before death

Facts:
- doctor whose father was suffering from cancer, bound to die in the very near future
- injected father with too much anaesthetic, hastening father’s death (i.e. mercy killing)
- convicted of murder

Issue:
- did Hartman kill father?

Held:
- Hartman’s conduct was the cause of death, despite the inevitability of father’s death which
would have happened in the next few hours, regardless

Adequate Cause: proves LC

whether the accused’s conduct in the ordinary course of human experience have the tendency to result
in the unlawful consequence?

Nova Causa Intervenis

**disproves LC: new intervening event that breaks chain of causation
1. Unusual, Abnormal, Unsuspecting
2. Independent of the Accused’s Conduct
o usually the difficult factor to prove
3. Factual Causation

Other Factors: feed into existence of NCI i.e. factors that determine whether there was an NCI

subjective foreseeability –
if accused didn’t foresee event, but a reasonable person would’ve: it can never be sufficiently unusual,
abnormal or unexpected to meet the requirement of an NCI
(Grotjohn – wife’s suicide was not independent of the accused’s conduct)

conduct / new event planned by accused –

can never be independent nor sufficiently unusual abnormal or unexpected

conduct or omission on the victim’s part –

pre-existing physical and mental conditions / susceptibility can never be an NCI, you take a victim as
you find him – “thin skull” concept
victims choice can never be independent of accused’s conduct – only seeking treatment because of the
conduct of the accused
1. R v Loubser
- victim hit in the head with a stick, had an open wound
- victim wasn’t well educated & simply bandaged wound w. dirty rag, subsequently died
- accused charged with murder for hitting him on head
- accused argued NCI – victim’s negligence in wound care
- found: was liable, ^ argument failed
o wound was intrinsically dangerous (something could’ve manifested regardless)
o in normal human experience, dirty stick can cause tetanus, even in absence of dirty
rag
o take victim as found, due to lack of education – it was not especially unusual or
abnormal that he didn’t have the knowledge of wound care

2. R v Blaue
- accused stabbed young girl, punctured her lung, required blood transfusion
- victim declined transfusion on religious grounds (Jehovah’s)
- accused argued that refusal was an NCI
- court held “take victim as you are” – not just physical, whole human incl. mental makeup
- NB, what if someone doesn’t believe in modern medicine, and rather seeks bona fide
traditional healing
o right to have alternative treatments is constitutionally protected

3. Mokgethi
- legal authority that POLICY is overriding consideration wrt. LC
- legal authority for sufficiently close cause
- bank robbery, victim shot – became paraplegic, recovered, went back to work
- didn’t follow Dr’s orders in shifting weight etc. à got pressure sores, got septicaemia, died
- robber charged w. his death
- accused argued NCI: even though he shot victim, he recovered from wound etc.
- conservative application of NCI
o definitely unusual not to look after oneself
o arguably independent of accused’s conduct, accused never caused pressure sores
o failure to shift weight definitely factual cause of death
- generally: merely wounding a victim isn’t sufficient to be legal COD,
but following must exist:
o victim’s failure to get medical treatment must be :
§ especially abnormal &
§ immediate COD
- court was unwilling to state that accused was legal COD

involuntary conduct brought about by the accused –

Van Den Berg: deceased acted involuntarily out of fear caused by accused’s conduct

Conduct by Third Parties

**usually medical intervention is not a sufficient NCI
^ not unusual/unsuspecting because it isn’t unreasonable to expect complications
^ not independent of accused because treatment wouldn’t have been needed
if medical intervention is grossly incompetent it might suffice as an NCI
**the less mortal the wound – the more likely an argument of an NCI will succeed

1. Mabole
- accused stabbed deceased, was hospitalized but kept getting sicker
- exploratory procedure in hospital to determine the cause of issues
- conducted with reasonable care but a pulmonary embolism occurred (which was a risk of the
procedure)
- no negligence on part of Dr’s
- misdiagnosis in treatment will not be an NCI

2. Williams
- deceased shot by accused
- deceased on respirator, became brain-dead
- accused tried to argue switching off the machine was an NCI

- even if medical intervention is proximate cause, still won’t be NCI if the accused’s
conduct is the reason the medical intervention caused the death

3. Ramosunya
- granny stabbed in collar bone, went to hospital, treated, discharged
- died at home due to sepsis in lungs
- was there an NCI?
- professional: sepsis could’ve been linked to stab wound, or to age, or to tobacco chewing etc.
o unclear where sepsis came from
- accused argued gross negligence
- on appeal: state couldn’t prove BRD that medical intervention was not NCI
- lack of evidence – if state doesn’t have sufficient evidence to discredit the existence of an
NCI, then it is unlikely that the accused can be found guilty

4. Counter
- 31 y/o male estranged from his wife, he came to her house and shot her in the ass
- deceased was seemingly okay so, the medical intervention failed to discover that the bullet
penetrated anal canal which ultimately lead to pneumonia which caused her death
- on appeal: was the medical intervention negligent or not, an NCI?
o no medical body of expertise would’ve done something different therefore it wasn’t
unusual/unsuspecting, no NCI
- gunshot wound that was at all times operating on the deceased: what the Dr’s did or
didn’t do was of no relevance to the court – the bullet wound was the cause of the
sepsis, not the medical negligence in not conducting further tests

5. Tembani
- boyfriend shot girlfriend which caused bowel matter & bile to enter abdominal cavity, caused
her death
- had proper medical attention been sought the wound would have been rendered non-fatal
- with such a wound, would’ve needed close monitoring
- exploratory procedures should’ve been done based on symptoms
- died because the hospital took too long
- but still not an NCI because at the time of her death, the initial wound was the
substantial cause of death, public hospital was overstaffed & need for medical attention
wasn’t independent of accused’s conduct

6. Mbambo
- A throws stones at C (head)
- B stabs C while on the ground (chest)
- CoD: head wound & chest injuries – usually wouldn’t combine physiologically
- A was factual cause
- was the chest injury an NCI
o unusual unsuspecting
§ possibly – because there wasn’t common purpose
o independent
§ A made it possible by rendering C a sitting duck
o FC
§ was both the factual & proximate cause
- unless head & chest combined caused death…A couldn’t be held liable
- wasn’t established that head injury were mortal in & of themselves

o according to court – was irrelevant, because an accused must be judged by what

actually happened and not what would’ve happened…B’s stabbing is an NCI because
C didn’t die due to A’s infliction of head injury
o A was only convicted of assault

7. Daniels
- see back of Starosta’s causation notes & notebook
- difference between this and Mbambo
8. Burger
- assaulted with kicks
- few days later assaulted again and died
- medical evidence, first ultimately caused death, second hastened
- what was the operating cause at the time of death

The Vesari Doctrine

‘vesari in re illicita’

Fault
- dolus is required for all common law crimes (excluding culpable homicide)
- statutory crimes contain the element of fault necessary to be convicted, within their definitions
- strict liability often arises in circumstance crimes i.e. intention/negligence N/A (no fault is required)

R v Churchill
• abduction = removal of woman <21 from the care of her guardian with the intention of having sexual intercourse
with her
• every element of the crime’s definition must have the requisite fault

S v Bernadus
• consequence crimes: if you can’t foresee killing someone, you can’t be held liable for murder
• murder = intentional killing of a human being

Ø MR must extend to every element of a statutory / circumstance crime

Ø MR must be contemporaneous with AR in common law / consequence crimes

“vesari in re illicita” – imputing intention of one consequence, to the intention of another

n someone intends to do X, however, Y occurs –
there will be ‘intention’ to bring about Y because there was intention to go through with X

Wallendorf
• X assaulted a cop
• cop was out of uniform, attempting to arrest 3rd party
• X was charged with defeating the ends of justice
o vesari doctrine extended intention to assault, to intention to defeat ends of justice
• X could not have reasonably known that the man was a cop, therefore he could not have
foreseen defeating the ends of justice through his assault
• court nevertheless confirmed the conviction, because intention was imputed

Matsepe
• X = truck driver
• child got into the back of X’s truck, without his knowledge
• X negligently crashed into a tree, which killed the child
• vesari enabled the court to extend the negligence of his driving, to his negligence in killing the
child – making him guilty of culpable homicide

DEVELOPMENT OF THE LAW ’62-’65

Van der Mescht

• first blow to vesari
• A & G illegally melted amalgam to extract the gold from it
• as a result, Hg gas was emitted – killing G + 4 children
• trial court: A convicted of culpable homicide
o reasonable person would’ve foreseen the emission of Hg gas
o vesari – accused intentionally attempted to extract gold without a permit, therefore can
be held liable for the further consequence which included the death of 5 people

• appeal court: set aside conviction on 2 grounds

o 1. can’t prove that a reasonable man would’ve foreseen emission of Hg gas
o 2. rejected imputing intention through vesari (wasn’t overruled)
§ N/A in these circumstances because it was not a case of assault, where
assault and death are sufficiently closely connected to impute intention of one
to the intention of the other
§ policy considerations don’t lend themselves to unrelated crimes, it is too far to
stretch the fault of extracting gold to the fault of killing

Bernadus
• vesari was overruled
• confirms that:
o statutory crimes – MR must attach to every element of the crime
o common law crimes – MR & AR must exist simultaneously
• A killed B by throwing a stick at B from a distance
o pointed part penetrated B’s skull
• trial court: guilty of CH (because death wasn’t reasonably foreseeable)
• appeal court: Question of Law = can one be guilty of CH when assaulting another, (causing
death), under circumstances where the death is not reasonably foreseeable by the accused
o silly question
§ assault is never negligent, dolus/culpa were muddled
§ dolus eventualis = subjective test
§ negligence = objective test
o rather: could A be liable for murder if he himself didn’t foresee the possibility of death?
§ NO
o with liability for murder, there must be subjective foresight of the possibility
o with liability for CH, a reasonable person must have reasonably foreseen the possibility
o an accused must have MR, either in the form of dolus/culpa extending to the possibility
of a victim’s death, not only to assault
o accused didn’t subjectively foresee : . no liability for murder, but a reasonable person
would’ve foreseen à CH is an appropriate conviction

FAULT MUST EXTEND TO EVERY ELEMENT CONTAINTED IN THE DEFINITION OF THE CRIME

Mens Rea: the mental element of criminal liability

MR = fault (intention/negligence) + capacity

**a person is blameworthy if they have either intention or negligence

Intention
- most consequence crimes require fault either in the form of dolus or culpa
eg. murder = intentional killing of a human being
culpable homicide (CH) = negligent killing of a human being

Actual Intention
1. dolus directus –
intention in its’ literal sense i.e. accused’s aim/objective, and followed through with desired consq.
Ø aim & object of accused is to bring about the unlawful consequence
Ø prospects of success N/A because intention is obvious,
Ø but no accused would admit to having dd : . usually purely academic, barely ever used in practice

2. dolus indirectus –
accused doesn’t specifically desire to bring about a prohibited result, but foresees it as happening as a necessity
to bring about desired result: if he does X, Y will inevitably happen even though Y wasn’t the intended consq.
Ø accused knows for a fact that non-desired result will occur
Ø R v Kewelram
o business man wanted to set fire to stock (kept in a building) to make insurance claim
o realized that setting fire to stock will inevitably cause the building to be set alight
o direct intention = fraud; indirect intention = arson
o knew as a necessity that undesired result would’ve occurred for desired result to come about
Ø Hartman
o main aim was to spare father from severe pain
o realized that to bring ^ about – he had to kill his father

Legal/Constructed Intention
1. dolus eventualis –
accused foresees the possibility of the unlawful consq. + undertakes the risk anyways, i.e. accepts the risk –
acting recklessly
Ø some academics see this as 1. Foresight & 2. Recklessness
Ø others as 1. Subjective Foresight, 2. Possibility, & 3. Recklessness (Burchell)
Ø R v Jolly
o industrial unrest – derailing of a train to make a statement by dislocating railway traffic (i.e. no ordinary
intention to kill anyone)
o minor injuries were sustained when train went off tracks
o AD appeal: rightly convicted of assault & attempted murder because there was de
§ foresight of possibility of casualties when derailing a train

eg. X wants to burn down a building, foresees that people might be in the building which might die due to
fumes/burns, but recklessly goes ahead and sets the building alight despite this knowledge:
actual intention = burning down building; extended intention = killing people inside
(different to indirectus because killing the people is not a necessity to burn down the building,
but there is a possibility that people could die if the building is burnt down)

Dolus Eventualis
accused foresees the possibility of the unlawfulness, in substantially the same manner as it actually occurs, and possibility is
accepted into the bargain, thereby acting recklessly
1. SUBJECTIVE FORESIGHT (inferential reasoning)
2. POSSIBILITY (real)
3. CORRELATION BETWEEN FORESEEN & ACTUAL MANNER (dealt with in mistake as to casual sequence)
4. RECKLESSNESS

Ø Sighwala – if accused subjectively foresaw possibility of his act causing death and was
reckless as to the result
Ø Mini – accused intends to kill if action is reckless regarding conduct resulting in possible
unlawful consequence

Subjective Foresight (different to culpa which requires objective foresight of a reasonable man)
**about considering the state of mind of the accused – whether the accused himself actually foresaw
• accused himself must believe that there is a possibility of an unlawful occurrence
• accused will never admit to what he did or didn’t foresee – (has a right to remain silent)
• state has a duty to prove what accused would’ve foreseen
o requires more than the simple colloquial understanding of intent

How can the state prove foresight beyond a reasonable doubt?

INFERENTIAL REASONING can determine what the accused foresaw, using objective factors**
**still about subjective foresight, objective factors help make inferences
objective factors = conditions that exist independently of accused
inferences can only be made if it’s the only inference that can be made from the objective factor,
i.e. the only possible outcome of the situation

these inferences should not be drawn easily, because there can be absolutely no doubt as to what the
accused inferentially saw

factors that might help to make inferences

Ø type of weapon
Ø affected body part
Ø manner wound was inflicted
Ø seriousness of injury
Ø facts must be scrutinized – highlight factors that might indicate that an inference can be made
o getting into the shoes of the accused:
§ what was foreseen by the accused in the circumstances?

factors which might impair the ability to make an inference

Ø immaturity
Ø ignorance
Ø lack of education
Ø intoxication
Ø superstition

Sighwala
• accused was armed with a long sharp knife
• accused and victim were advancing towards each other – knife was in hand
• victim jumped into the knife, which deeply penetrated him
• issue
o was there subjective foresight?
§ deadly weapon
§ happened quickly, possibility that opponent lunged toward knife
o nothing to suggest ignorance or unawareness that a knife-stab could cause death
§ only inference possible: foresight
§ confirmed by AD

§ regardless of whether deceased jumped towards, or victim actively stabbed –

there was foresight on the part of the accused
§ lethal weapon

Mini
• people living in a rural village, fight occurred & accused threatened to stab
• victim walks away, accused wanted to show that he would actually stab
• penetrated in the back
o wasn’t particularly deep
o victim died, very skinny man
• could accused have foreseen the possibility of death?
o court was divided – can you say that foresight is the only inference? NO
o minority: accused must’ve foreseen, stabbing would likely lead to death
o majority: ignorance & lack of education leans towards not foreseeing
§ convicted of CH – reasonable person wouldn’t stab without foreseeing death

statutory offences wrt. foresight à must extend to every element of the definition outlined in the leg.
**important to recognize if a statue requires a higher form of intent i.e. actual, as opposed to legal
^ De Bruyn; Coetzee – de is sufficient for all intention…this is an exception!!

Churchill – abduction, defined in leg.

• couldn’t be found guilty, couldn’t foresee that girl was <21
Z – rape
• underage girl, couldn’t legally give consent
• accused couldn’t have foreseen the possibility that she was underage (possible misrep.)
• wasn’t convicted: fault didn’t extend to every element of the crime
Kazi
• charged with participating an illegal meeting (apartheid)
• didn’t know that permission wasn’t obtained : . can’t be held liable for aiding an illegal meeting

Possibility
Certain------Probable------Real Likelihood------Possible------Remote

Generally:
certainty / probability is not required; the accused must only see things from a remote to real
possibility à any foresight, no matter how remote, creates a blameworthy state of mind
however, some judges argue that it is not enough that a remote possibility is foreseen, if something is only a
remote possibility it’s not reconciled because it’s so seemingly unlikely that it isn’t taken into the bargain
^ might be better to explain negligence…holding people to a specific standard

SHOULD BE AT LEAST A REAL LIKELIHOOD THAT UNLAWFUL CONSEQUENCE WILL OCCUR

Horn (not good precedent)

Ø accused = farmer, finds 2 women stealing melons
Ø accused was armed, starts calling out to women, one stops, other runs
Ø on objective evidence: far away from woman
Ø accused version: shot to the right of her to frighten
Ø on appeal:
o set aside murder conviction à CH

o trial court failed to prove eventualis

o court used existing law at the time, that a citizen could affect a person’s arrest
o death wasn’t a probable possibility
o according to Horn’s judgement, the possibility should be probable
o the more likely the death, the stronger the inference that there was subjective foresight
Ø criticism: can’t a warning shot in the air sufficiently scare a person?

De Bruyn
Ø obiter: legal intention will be present, if there is even a remote possibility

Shaik
Ø armed accuseds robbed deceased
Ø police baton was used to beat the deceased (usually doesn’t cause tremendous injury)
o deceased died from brain injuries
Ø accuseds tried to argue that the possibility of death was so remote that it can’t be foreseeable
Ø court said that eventualis exists no matter how remote, as long as the possibility relates to
death (i.e. if only injury was foreseen it would be insufficient)
Ø objective factors were used, telephone wires cut & going in with weapons

De Bruyn & Shaik – remote possibility is sufficient

Critique
**unlikely that remote possibility will prove DE brd
>> possible that a remote possibility is better linked to conscious negligence

Ngubane – in truth, the state of mind i.e. whether the possibility was reconciled in the accused’s head is
what is NB, not how probable or remote the possibility may be.

Makgatho – SCA has confirmed that a real, not remote, possibility must be foreseen

Recklessness
(taking the possibility into the bargain)
recklessness means that the accused consents to the possibility of an unlawful consequence unfolding
i.e. prospect of unlawful conduct isn’t strong enough to deter accused from proceeding

**recklessness is usually assumed

but, issue of AR & MR existing at the same time

Ngubane
Ø obiter: doesn’t agree that a remote possibility is sufficient for recklessness
o if the possibility is really small it may have a bearing on whether the accused really
accepts the ‘risk’ if it’s so remote

Beukes – foresight of a reasonable possibility

Ø 3 accuseds rob a café
Ø A & policeman were killed…B & C had common purpose wrt. police officer
Ø B & C argued that they didn’t have foresight of A shooting someone
o Objective Factors
§ conversation about A shooting if anyone gets in way
§ ^ shows foresight & acceptance (if they didn’t accept they would’ve refrained)

DE suffices for any crime, unless state requires that directus is required
**it’s not only relevant to murder, also can exist for other consequences, eg. attempted murder

Dolus Indeterminatus (General Intention)

• don’t intend to kill a specific person, but intend to kill
• used for bombings…no specific intent of who should die, but murder of someone is intended
• the group of potential victims must be identified before applying this form of intention
• all 3 types of intention can be indeterminate

Motive
• not a feature of intention in SA,
(Peverett – just because he didn’t want to kill, doesn’t mean he didn’t intend to kill)
• relevant for sentencing (Hartmann)
• possible objective factor to help with inferential reasoning

The following are SCA cases – there is nothing new that comes from them…all basic knowledge of fault
would’ve led us to the same conclusions that the SCA came to in them…they merely confirm everything

Campos (30-35, 38)

Ø (May) baby kept crying & father described her as full of shit
Ø father went to buy nappies, leaving her with mother
Ø on return, saw mother running around, became clear something was wrong
Ø mother put wooden spoon in mouth
Ø take baby to doctor & examines baby, finding many injuries…scratches, burns, bruising, etc.
o baby is treated & an investigation is opened regarding abuse
o baby was in someone else’s care most days
o no grounds to keep baby away from parents & returned to their custody
Ø when baby returned from hospital, mother stayed home for a few weeks then placed back into
care of day-carer
Ø day-carer fell ill, baby went into care of grandmother
Ø (August) baby kept crying & was taken to new doctor
o doctor took bloods which were supposed to come back the next day
o next day, father got call from mother saying something isn’t right
o mother’s version: baby stopped breathing & she started freaking out
o child died upon arriving at hospital
§ post-mortem revealed serious injuries to baby
Ø mother charged with murder, father was exonerated
o parents said maybe the day mother caused the injuries
o or, maybe in mother’s frantic state she by mistake injured the baby when running
around
Ø trial court: directus
Ø appeal: no directus, was there eventualis
o mother accepted that she may have injured child but definitely wasn’t intentional
o on principle: more than one inference could have been made on the fatcs
§ can’t be said to have had legal intention
§ can only be convicted of CH

Van Aardt (37 – 40)

Ø 49 y/o farmer = accused
Ø issue: killing of 15 y/o on his farm

o deceased was a visiter on an adjacent farm (Mr K)

o accused asked deceased to fetch something from car
o later found that there was money missing from accused’s car
o worker pointed at deceased saying he took money
o accused assaulted deceased
§ bitch slapped him
§ hit him with a stick
§ witness versions: also, partial strangulation, threw him to the ground & pinned
him down, pummelled him with clenched fist, deceased was dragged to Mr K,
went inside barn and thuds/cries were heard, then dragged outside and left,
deceased crawled to pile-ons where he slumped over, workers were told to
leave him alone, at some point Mr K & others put duvets on deceased and left,
next morning accused & K went to see deceased who was still alive, accused
gets scared and take deceased in and attempt to aid/heal him, eventually
worsens and dies
Ø trial court: convicted accused of murder
Ø on appeal:
o unsuccessful, still guilty of murder
Ø on appeal to SCA
o objective factors
§ could accused have foreseen death? Found – yes, direct intent to cause death

Combrink (17, 18)

Ø farmer = accused, driving along dirt road near mielie field & noticed someone walking
Ø called out to person, who didn’t respond…thought it was a trespasser
Ø shot in direction of person, then continued to call, and shot again
Ø farmer’s version:
o after 2nd shot, saw person turn around & fall down…saw it was his worker
o later that afternoon went to investigate & saw employee was dead
o called neighbour and said “I shot a suspicious person on my land”
Ø trial court: acquitted
o when person was found, there was a shotgun underneath him acc. to accused
o unclear on person’s suspicion : . not guilty
Ø appeal: SCA…was there de?
o other worker testified, confirming farmer’s version
o knowledge shows foresight, why didn’t he go investigate initially?
o after he already knew that he killed an employee, only then did he later call for help
o he never intended to kill, however the only inference was that he foresaw

Pistorius (28-34, 38-40)

2013 – HC, 2016 – SCA, sentencing on murder case, 2017 – sentence appeal
Ø mistake of fact (not for intention, topic on its own)
o killing someone other than the person you intend to kill
Ø abberatio ictus
o blow going astray, still need MR for other person that wasn’t intended to kill
Ø Pistorius argument – didn’t intend to kill ‘whoever’ was behind the toilet, just intended to stop
Ø need objective factors to determine what he subjectively foresaw with ‘whoever’ was in the
bathroom

Maarohanye (1-4, 10-14, 19-23): intoxication + effect of de

Negligence = Foreseeability (1) + Preventability (2)

culpa is a lesser form of dolus : . it is possible that both exist at the same time à falling short of conduct of reasonable man

1. Would a reasonable person in the position of the accused foresee the possibility of the unlawful consequence?
2. Would a reasonable person in the same position of the accused take steps to guard against the possibility?
3. Did the accused take such steps? (not a necessary enquiry to make)

**a reasonable man will always prevent the commission of a crime : . always guards against the possibility of committing

In dealing with negligence, the following will be addressed:

WHO IS A REASONABLE PERSON?
WHAT DOES IT MEAN TO BE IN THE POSITION OF THE ACCUSED?
ARE THERE QUALIFICATIONS TO THE ABOVE TWO PROPOSITIONS?

Conscious Negligence

- fine line between de (subjective test) & negligence (objective test)

- real v remote possibilities
- explains the position that dolus & culpa seemingly exist at the same time
o remote possibility: negl.
- Hedley: (different to other cases, because Hedley foresaw the possibility but didn’t reconcile)
- ^ on par Ngubane
o facts
§ accused fired a shot near a dam, where across the dam there were houses
§ bullet ricochets off the water & ended up killing a child
o issue:
§ is this de or negl.
• obvious that there was no intention to kill a human
• admitted that he subjectively foresaw possibility
• possibility was so remote that he never reconciled himself
o held:
§ accepted accused’s version
§ convicted of CH
§ foresight of a slight possibility is not enough for de but sufficient for conscious
negligence
§ conscious negligence attracts slightly higher blameworthiness than
unconscious negligence with no foresight at all (this might affect sentencing)

dolus doesn’t exclude culpa à they are not mutually exclusive;

they can co-exist but you cannot be found guilty of both murder & culpable homicide
usually the state will choose the higher form of fault i.e. murder in the form of de
if the state charges one with CH, they can’t find de and then convict one of murder
(NGUBANE)
^ initially charged with murder, but N pleaded guilty of CH & court accepted plea, and state had to
prove case & found de, but couldn’t convict him of murder because they already accepted CH plea
THE PURPOSE OF NEGLIGENCE IS TO ENSURE THAT PEOPLE DON’T FALL SHORT OF A CERTAIN BASIC STD.

WHO IS A REASONABLE MAN?

- objective test: not concerned with the accused himself, a reasonable man is put in the shoes of
an accused
- is putting the reasonable man in the shoes of the accused, not making is subjective? NO
o still looking at external factors – this is objective
§ FACTORS MUST BE OBJECTIVELY VERIFIABLE
o notional reasonable man is simply given the external attributes of the accused
o no subjective, inherent or internal factors are considered
§ drunk, depressed etc.
§ you can’t objectively verify the extent of these things, they differ among indv.
- what about an accused who professes a specific skill?
o to what standard should he be held?
§ a reasonable man doesn’t profess to have skills that he actually doesn’t have
§ if you are professing to have skills that you don’t – you fall short of the
standard of a reasonable man
§ eg. don’t act like a doctor if you aren’t one
§ STILL NOT SUBJECTIVISED
- there is a fine line between objective & subjective

Ø dilligens paterfamilias – careful head of the family

S v Burger – defines who is a reasonable man

accused kicked a victim multiple times in the stomach
o reasonable man would foresee that such an assault would lead to death
Reasonable Man = notional epitome of prudence, extremes aren’t expected
Ø doesn’t have to have expert wisdom, extreme caution, headstrong haste, prophetic foresight
Ø someone who treads life’s pathway with moderation & prudent common sense

Mbombela ‘33 (attempt to apply reasonable man)

Facts:
- 18 y/o living in a rural tribe subject to chieftaincy
- kids ran up to him saying they saw a Tokoloshe, M went to investigate
- common belief in community that Tokoloshe was a seriously dangerous character
- M didn’t look properly out of fear of looking him into the eyes
- axes a young child, which results in child’s death
- chief couldn’t deal with the matter, sent to court
- clear that there was no de
Held:
- motivated by racism & Apartheid:
o the only kind of reasonable man = white city dweller
o should ignore racial differences etc…
- still good law à there is still only one reasonable man but, rather than Mbombela application:
ordinary citizen who follows the constitution, with ordinary knowledge would’ve taken
reasonable steps to guard against the unlawful consequence ensuing

M is an ordinary citizen living in a community that believes in the Tokoloshe

likely that if it were heard today – he would still be convicted of CH because it was outraged by comm.
a reasonable person within the community would still have foreseen that the creature was a human
and not a Tokoloshe & would’ve taken reasonable steps to guard against the possibility of death

Mahlalela ’66 (someone who professes to a higher standard and falls short of it)
Ø sangoma who gave a girl a ‘potion’
Ø unbeknown to sangoma, potion was fatally poisonous
Ø girl died
Ø convicted of CH à a reasonable man, who is a sangoma ought to have foreseen
o NOT SUBJECTIVE
o a reasonable man would not act as a sangoma if he wasn’t one
o because he acted like a sangoma and concocted a potion, he should’ve known which
herbs were poisonous
o he therefore fell short of the reasonable man std.

Van der Mescht (reasonable man with skill)

Ø smelting gold story (look at vesari)
o initially held liable because intention was imputed
Ø on appeal:
o characters weren’t professing to be experts, were merely trying their luck
o would a reasonable person in their position have foreseen death?
§ no…how can a lay person know that smelting amalgam would lead to death
Ø the answer would be different if they professed to be experts or actually were experts

Southern
Ø bus driver involved in an accident
Ø court confirmed: a reasonable man in the position of the accused (objective circ.)
o what would a bus driver, driving a fully loaded bus do on that day, in those circ.

WHAT MUST A REASONABLE MAN FORESEE?

Ø depends on the crime

o if killing – reasonable man must foresee the possibility of death
o if theft – “…” the possibility of taking something that’s not yours

Bernadus
Ø knobkerrie thrown, lodged in someone’s skull and killed them
Ø case where vesari was abolished
Ø majority:
o to prove CH reasonable man must see possibility of death, foresight of harm or
anything less that death – it is not sufficient
Ø negligence take on things
o 2 judges whose opinion is rejected by academics (improper application)
o if a serious injury is foreseen à should foresee death
o if any bodily injury is foreseen à death should be too
o ^ basically the idea that a reasonable person doesn’t just assault people

Van As (proper application of negl. Enquiry)

Ø A slapped B on the cheek
Ø B was very fat, lost balance, fell backwards, hit head & died
Ø would a reasonable man in the position of the accused have foreseen death?
o must consider the objective circumstances…
§ was there a corner nearby, was it a flat surface
o court held that A could only be convicted of assault

HOW DOES NEGLIGENCE AFFECT THE THIN SKULL RULE?

- ‘take your victim as you find him’ à helps establish causation

- negligence is different: thin skull has no bearing on a negligence enquiry
o there is usually no liability because usually a reasonable man doesn’t foresee these
things…

Mistake of Fact

What is mistake?
• mistake normally negates the fault element
• momeone confessing to a mistake is implying that there is no intention

Two Types
1. Mistake of Fact
2. Mistake of Law (not examinable in 2018)

**Mens Rea must extend to every element of the crime**

eg. MURDER = 1. Unlawful 2. Intentional 3. Killing 4. Human Being
1. You must know you are acting unlawfully
^ if you don’t foresee the real possibility that you’re acting unlawfully, you don’t have MR wrt this element
2. You must have intention
3. You must foresee the real possibility of death
4. You must foresee the real possibility of it being a human being
^ what if you don’t know you’re killing a human being eg. Mbombela…thought it was a tokoloshe not a human

when will mistake result in an acquittal by negating liability? à answer is determined by application of principles of fault

yes, a mistake was made…but did you nevertheless see the possibility that you were possibly committing a crime?
yes, a mistake was made…but would a reasonable man still have foreseen the possibility that a crime would be committed?

WE ACCEPT THE MISTAKE AND THEN ASK: DESPITE THE MISTAKE, CAN FAULT BE ESTABLISHED?

when a mistake is made: it will only negate liability if the mistake is about an essential element of the crime
^ ERROR IN OBJECTO
eg. killing the wrong person, is not an essential mistake because all the elements of murder are still there
^ a human being is a human being…if you intended to kill one but ‘by mistake’ killed another à it’s still a human being

Grounds of Justification

the following established defences allow for what would otherwise be deemed unlawful, to be condoned:
- Private Defence
o response to an unlawful attack
- Necessity
o results in infliction of harm on an innocent person
- Compulsion
o emanates from human agency or force of surrounding circumstances
- Impossibility
o failure to carry out a positive obligation imposed by law
- Superior Orders
- Disciplinary Chastisement
- Consent

unlawfulness is essentially conduct that isn’t warranted by a ground of justification

unlawful conduct meets the definitional elements of a crime
lawful conduct does not meet the definitional elements of a crime because the circumstances may justify the
conduct
(society would not require that lawful conduct be punished)
^ Clarke v Hurst NO – the LCC form the basis of criminality in deciding what should or shouldn’t be lawful

unlawfulness is the judgement of the act (i.e. any person may act unlawfully, regardless of their culpability)
culpability is the judgement of the perpetrator (i.e. mental illness, youth etc. might serve to exclude liability to an
extent)

the accused bears no burden of proof, but is generally required to adduce evidence to support their defence

law & morality

Ø determination of whether a defence can exclude unlawfulness can be based on those crystallized
defences
Ø for defences influenced by the boni mores:
o public policy is a fluid concept, things keep on changing – societal morals fluctuate
o morality has a strong influence on what is lawful or not
§ eg. abortion
• used to be unlawful but the advent of s12 has changed that
• can minors have an abortion without parental consent?
o boni mores allows procurement of abortions by minors, even
though surgical procedures require parental consent
§ Stransham-Ford
• (euthanasia)
• HC: doctors can assist to terminate life, order was obtained but he was
already dead
• SCA: appeal
• physician assisted suicide vs physician administered suicide
• SA doesn’t allow for ‘mercy killing’ like in Hartmann
• courts will only go so far as to say physicians can withdraw life support
where a life is sustained artificially

Private Defence

A person acts in lawful PD if using force to repel an unlawful attack, that has commenced / is imminently
threatening, upon own/other life, bodily integrity, property, or other interest that ought to be protected, provided
the defensive act is necessary to protect the threatened interest, is directed against the attacker, and is reasonably
proportionate to the attack

- PD has ancient roots: every person has the right to defend himself against an unlawful attack
- private incorporates the self, and other interests (persons, personality property, property)
- two theories for the justification of PD
o Protection Theory
§ each person’s right to defend self / another against an unlawful attack
o Upholding of Justice Theory
§ people acting in PD perform acts wherein they uphold the legal order
§ PD only comes into play where there is an unlawful attack
§ it is impossible for the state to protect the individual at all times
Attack Requirements
1. unlawful
2. legally protected interest
3. commenced or imminent (not yet complete)

Defence Requirements
1. against attacker
2. necessary
3. reasonable

The Test for PD

- objective test to determine whether requirements are met (S v Ntuli)
- must nevertheless avoid being an arm-chair critic
o security of the court room and heat of the moment are hardly similar
o the position of the accused is vital
- ex post facto inquiry: not the same as negligence

Requirements of the Attack

1. UNLAWFUL ATTACK

Ø PD isn’t available to justify ‘defence’ of a lawful attack

Ø PD against PD isn’t lawful, because PD is not an unlawful attack
Ø PD may be a defence against a PD attack that exceeds the bounds of PD
o PD that exceeds the bounds cannot be deemed to be lawful
o even the original attacker’s subsequent retaliation can rely on PD;
if the retaliation by the attacked exceeded the bounds of PD
Ø not available for pre-arranged duels (Jansen)
o aversion of the blow was part of a pre-arranged unlawful attack
Ø involuntary acts are not unlawful
Ø an attack by an animal is not unlawful
Ø if a person acts w/out criminal capacity;
this doesn’t affect the unlawfulness of the attack (needn’t be committed culpably)
Ø unlawful attack can be against a 3rd party & be defended by someone else
o unless 3rd party has explicitly asked not to be helped
Ø omissions can qualify as an unlawful attack

R v Patel (not merely self-defence; can protect the life/limb of a 3rd party)
• PD by defender whose brother was being attacked
• court a quo – bounds of PD were exceeded
• appeal – conviction set aside
o don’t judge the accused based on whether he had time to make a choice
§ can’t be an arm-chair critic

2. AGAINST AN INTEREST THAT OUGHT TO BE LEGALLY PROTECTED

(more than just life & limb ought to be protected)

a. Human Life & Bodily Integrity

Ø your own, or someone else’s

R v Patel (protecting brother’s life);

R v Mhlongo (protecting brother’s life, but exceeded bounds of PD)

b. Property
(deadly force may be used to protect property…controversial because life > property)
^ usually a warning should be issues & least dangerous response should be used
- use of force to prevent thief from taking movable goods,
- infliction of physical harm to prevent damage to property,
- physical resistance to unlawful intrusion into property,
- placing traps for intruders

Attack:
property (movable/immovable) was presently (including traps with adequate warning) in danger of
damage/destruction (seriousness objectively assessed) by an unlawful attack

Defence:
necessary to avert, reasonable response, directed against attacker

Unlawful Entry into Premises

Ø provided the defence meets the requirements, PD of property is condoned
Ø there is no duty to flee from an attack

R v Stephen
• imminence in relation to property
• accused was sleeping, awoke to sounds of intruder
• never called out & hoped to stab intruder in arm
• intruder was found dead due to stab to chest cavity
• trial court – no real threat, accused should’ve called out before stabbing à CH
o person may resist an invasion of property using violent, even deadly
o but should call out as warning
o there must be an objective attack, mere trespassing is not necessarily sufficient

Protection of Tangible Property

Ø one may use lethal weapons to protect property, but this isn’t readily available
Ø only available in exceptional circumstance where there were no other options

S v Van Wyk
(may not pass constitutional muster – life > property)
IMMINENCE IN RELATION TO PROPERTY
• shopkeeper subject to countless burglaries despite efforts : . rigged a shotgun as a trap-gun
• put up a notice of warning & informed the police
• was only meant to wound intruder in the leg, but upon break-in someone was fatally shot
• argued that there was no imminence (requirement of the attack)
o can this rule be relaxed in relation to setting a trap to defend property
• PD was a successful defence
o Steyn –
§ deadly force may be necessary to protect property
§ owner’s property > life of person entering (sometimes)
§ can use PD
o Rumpff –
§ the moment the trap went off, there was no imminent attack
§ the setup of a trap has the same limits as PD proper
§ can’t use PD
o Trollop –
§ was the trap reasonable & necessary in the circumstances?
§ had VW been there – would’ve been a justified killing
§ trap was the only means available to him at the time
§ can use PD

c. Personality Property
Ø can include dignity (how you perceive yourself) or fame (how others perceive you)

R v Van Vuuren
• charged with assault – applied force to victim after victim injured wife’s dignity
• raised PD
o accepted by court
o PD isn’t only in protection of life, limb & material property
o can be extended to personality property i.e. dignity

3. COMMENCED/IMMINENT ATTACK, NOT YET COMPLETE

Ø not about vengeance
Ø fear alone is not sufficient, but don’t have to wait until first blow is administered by attacker
Ø Van Wyk – attack hadn’t commenced when trap was set up, but in exceptional circ. à allowed
Ø if other forms of protection are available – won’t be successful

S v Mogohlwane
• accused came from work with a bag, someone came and took it
• accused left to arm himself and returned – stabbed & killed thief
• if the attack is complete – the conduct amounts to retaliation not PD
• trial court – acquitted
o conduct was always about regaining the bag, not getting revenge
o theft is a continuous crime : . attack wasn’t complete when stabbing took place
§ couldn’t prove brd that defensive act was remote enough from the initial attack
o there was no other more effective remedy reasonably available to regain his property

S v Hele
• 17 y/o boy killed a drunk man in a movie theatre
• couldn’t prove brd that accused had less lethal means to escape attack
• court must put itself in the position of the accused & view matter in light of circumstances
• OBJECTIVE TEST

S v Hope
• don’t have to wait for the first blow to be administered, imminence of blow is sufficient

Requirements of the Defence

(attacked person should be aware that they are acting in PD)

1. DIRECTED AGAINST ATTACKER

Ø cannot be exercised against a 3rd party – must attack attacker

2. NECESSARY
Ø there cannot be a less harmful way to avert the attack (if there are, PD won’t succeed)
Ø SA law doesn’t require one to flee, sometimes fleeing is worse than retaliating
Ø if a duty to flee were imposed, there would be no purpose for PD

R v Zikalala
• argument 5 days before day in question
• appellant was stabbed, then a few days later was stabbed again by deceased
• tried to flee the second time but was physically impossible
• deceased tried again, and appellant killed deceased with penknife
o accused couldn’t flee – would’ve been stabbed in the back

3.REASONABLE
Ø defences that use more than what’s necessary are not reasonable & not justifiable
Ø there should be a reasonable balance between the attack and the defence
Ø attack and response should be somewhat equivalent
o S v Van Wyk – proportionality test was rejected
o nature of the interest protected, and interest impaired don’t have to be the same
Ø means used do not have to be proportional
o depends on relative positions of parties (not a closed list)
§ relationship, age, gender, physical strength, location, severity of attack, nature
of weapons, severity of harm caused / to be sustained, means available / used
§ SA law uses a relatively objective test ^

Exceeding the Bounds of PD

- using defensive means that are excessive relative to the gravity of the attack
- the attacked who exceeds the bounds becomes the attacker
- original attacker can use PD if this ^ happens
o exceeding the bounds of PD = unlawful attack : . original may use PD
S v Doughtery –
• man who chased after people from his party, took law into his own hands
- just because death is foreseen doesn’t mean defender has requisite intention
o must have knowledge of unlawfulness to have dolus
o colourless intention = intent w/out appreciation of unlawful quality of act

S v Ntuli
• young man killed old woman who attacked him
• found: exceeded bounds
o considered relative positions of each party
o could’ve used less harsh means to avert the attack

R v Mhlongo
• father attacked brother, accused stabbed father twice
• court a quo – convicted of murder
• appeal – confirmed trial court
o exceeded bounds

R v Mathlau (excessive force – conviction of murder changed to CH, same sentence)

S v Trainor (excessive force – contravened Domestic Violence Act)

S v Joshua (excessive force – no actual threat upon house)

Putative Private Defence

- if conduct is found to be lawful: acquittal à end of inquiry
- if found to be unlawful – possible further inquiry
o putative PD = genuine but erroneous belief that one was acting in PD
o excludes culpability : . subjective test

S v De Oliviera
• didn’t give evidence in court
• PD and putative PD are different
o PD excludes unlawfulness, putative excludes culpability
• in casu – there was nothing to suggest they were under attack
o putative PD (genuine, but erroneous belief – subjective) not PD

S v Joshua
• accused & wife were walking à 4 men robbed them
• accused ran home to get shotgun and killed 3 + injured 1
• injured party fled, accused chased him
• arrived at 3rd party
o accused killed 3rd party, friend, dog
• at the park
o accused had right to raise PD
o from evidence however – men were shot in the side – no imminence from this
• PPD
o reasonable for accused to believe his life was in danger
o genuinely but erroneously believed : . 3 men shot in the park
o accused however found guilty of CH – can’t say that a RM would’ve acted the same
o at the 3rd party house
§ shot in the back, no threat, was no genuine but erroneous belief
§ convicted on 2 counts for murder

DPP v Pistorius (genuinely but erroneously believed that he was acting in PD)

PD by a Battered Spouse
- if subject to actual physical abuse / imminent application of violence: PD allowed
- what if the attack isn’t imminent but attacks have occurred persistently over time
o women who kill husbands when not ‘directly’ under threat
o Engelbrecht, minority = acted reasonably; majority = exceeded bounds
§ question of whether inevitable attack can be equated to an imminent one
§ facts and circumstances of the case will decide if the defence was justified
o Steyn
§ couldn’t have been expected to turn her back on husband
§ acted within the scope of a reasonable person in her position
§ defence was lawful

Necessity

- necessity negatives the unlawfulness of the AR

- arises in a situation where one faces
o a situation of emergency
§
o duress
§ often referred to as compulsion/duress
§ where a person finds themselves under pressure,
a person might not be acting voluntarily (vis absoluta)
§ compulsion vs involuntariness
§ compulsion excludes unlawfulness
§ vis absoluta excludes voluntariness
o ^ need to make a choice between enduring the harm or breaking the law
- can come about due to human agency
- necessity vs private defence
o both involve the protection of interests that are of value to a person
o there are certain protectable interests
§ life & limb
§ third party
§ property
o necessity is not a readily available defence
§ ^ R v Mohamed à restricted application because it involves harm of 3rd party
• restricted to protecting bodily interests & others, but not ecomonic interests
(Canestra)
§ as opposed to PD, the retaliation may be considered ‘just dessert’
o origin of situation of emergency of private defence:
§ is always from an unlawful human attack
o origin of situation of emergency in necessity:
§ the agent may not be human, defence is unlikely to be directed at the attacker
• usually directed towards an innocent third party
• S v Goliath

NECESSITY KNOWS NO LAW

Mohamed – ‘if I open the police will beat me up and harm my family’
^ defensive act was resisting arrest: not directed at the attacker, but rather the warrant
may involve protecting bodily integrity of a third party
^ Pretorius:
pleaded guilty to speeding, because his child swallowed 9 tablets, and thought the best thing to do was to
exceed the speed limit to save his child’s life
^ court found that under the circumstances his defence was justifiable on the grounds of necessity
THREAT = situation of emergency (not duress)

To invoke necessity
- there must be a situation of emergency, which must have begun and not terminated

can one rely on the defence of necessity if the accused themselves is responsible for the emergency?
Ø NO
Ø Bradbury – joined a gang & got to a point where his, and his family’s life was endangered
^ court refused to accept the defence of necessity,
B knew that the gang was involved in killing – he bought the situation about himself

choice between: suffering some evils or breaking the law to avoid the evil
generally bought about by – the force of surrounding circumstances or by human agency
^ usually emergency ^ usually compulsion/duress
(nature / circumstances) (unlawful human act)

Emergency
- fire in Y’s house, X breaks window in Y’s house to escape fire: can’t be convicted of malicious damage to property
- X’s baby overdoses on pills, X exceeds speed limit to get to hospital: can’t be convicted of reckless & negl. driving

Compulsion
- X tells Y to kill Z or X will kill Y’s family
- Absolute v Relative Compulsion
o vis absoluta (DURESS) – not acting voluntarily: can’t subject bodily movements to conscious will
§ actual physical force preventing X from acting voluntarily
o vis compulsive (COMPULSION) – voluntariness is present, Y free to choose to submit to the compulsion

requirements for both situations are the same –

doesn’t matter if it was an emergency or duress, or
directed at an innocent party or legal provision

REQUIREMENTS FOR A SUCCESSFUL PLEA OF NECESSITY

a. legal interest must be endangered
b. commenced or imminent threat
c. not caused by the accused
d. necessary to avert the danger (i.e. not legally required to endure it, eg. lawful arrest)
e. means used must be reasonable in the circumstances
**different to PD because:
- raising necessity doesn’t require that there was an unlawful attack
o acting in defence of an animal = necessity, not PD because an attack by an animal
- an act of necessity usually isn’t directed at the instigator, rather at an innocent party / legal provision
o PD is more readily justified because an unlawful attack should receive just dessert
o necessity requires the person to choose between suffering harm or breaking the law

. necessity must be applied in very narrow circumstances – if not, there’s danger to the possibility of condoning criminal acts
. another problem with making necessity a readily available defence is that the attacked 3rd party can then not act in PD

Ground Excluding Unlawfulness vs Ground Excluding Culpability

(Bailey)

Ground of Justification (excl. unlawfulness)

Ø in an emergency
o weighing up two conflicting interests & protecting the interest of greater importance
o the greater interest must be protected over the minor– regardless of who it favours
Ø the law doesn’t expect people to be martyrs – even with intention & knowledge of unlawfulness
o may be exempt from conviction of what would otherwise constitute a crime

Negating Culpability
Ø X kills someone to ward off a threat of X’s own life
o the conduct is still unlawful – no-one’s life should take preference over another’s
o but
o Goliath – only a hero would sacrifice their life above another’s
§ X’s act is therefore not considered blameworthy
§ ACTING WITHOUT CULPABILITY
Requirements In-Depth

1. Legal Interest Endangered

- danger of death / serious bodily injury

- danger of lesser injury

- danger of damage to property

- economic interests are not protected (Canestra)
o other means of livelihood must be sought if the only way to carry out, is by
breaking the law
- Werner
o moved to ‘white area’ not for economic purposes, but for the health, privacy and
safety of his family (necessity was justified)

**HARM AVOIDED VS HARM DONE**

2. Threat Commenced / Imminent

- if the threat is only going to materialize in the relatively distant future: necessity will fail
- once the danger has passed, the accused must desist immediately
- Mtetwa
o imminence relates probability of it commencing & means available to avert
- Mandela
o no immediacy – accused could’ve gone to police or given warning

3. Threat not Caused by Accused’s Fault

- one can’t rely on their own error to escape liability

- Bradbury
o accused knew he was entering a gang – can’t say he was compelled to kill
- issues with this requirement
o Mahmoed
§ refused to open the door after kidnapping a girl, for fear of attack
§ why were the accused’s convictions set aside if the need to refuse to open
the door was because of them kidnapping the girl?
• said that it was an indirect result, this requirement alludes to it as
a direct result
• the accuseds didn’t voluntarily subject themselves to compulsion
& weren’t under a duty to endure the compulsion
o Adams; Werner
§ threat not caused by accuseds, but rather the lack of accommodation
o Mandela
§ no evidence was adduced that he foresaw the violent nature
- must be wary of giving fault too broad an interpretation
o beekeeper example: he foresees that he might be attacked, but he can’t be
deprived of using necessity as a defence because of his foresight
o negligence with medication: parent can’t be prevented from speeding out of
necessity to save their child’s life because they were silly in not locking it away
§ Pretorius

4. Necessary to Avert the Danger

- harm would probably have followed if the accused hadn’t acted as they did
- accused should do everything possible to avoid compelling the force
- judged objectively, the accused’s subjective perspective is only relevant to MR

o WOULD A REASONABLE PERSON IN THESE CIRCUMSTANCES BE

EXPECTED TO RESIST THE THREAT?

5. No Legal Obligation to Endure Harm

- circumstances where the accused may not attempt to escape the harm
o fleeing to avoid prison sentence
o fleeing when obliged to protect others
- should not automatically exclude the defence
o merely a factor to be weighed
o eg. if conditions of a prison are so intolerable, that inmates may be justified in
escaping, provided there is a genuine effort made to surrender to authorities

**the accused must be conscious of the existence of the necessity – no accidental necessity

Killing Under Duress/Compulsion

Dudley & Stephens (England)

Ø two sailors charged with murdering a cabin boy
Ø 7 days without food, 5 days without water
Ø boy on the brink of death from starvation & thirst
o killed to save the 2 sailors
Ø necessity failed
o “saving your own life by killing is not law today”

Werner
Ø German prisoners of war – murdered fellow prisoner under instruction of an offider
o alleged they had to abide due to fear of reprisals being taken against their families
Ø “killing of an innocent person is never legally justifiable, and even if it was, fear of reprisal isn’t
a sufficient justification”

Bradbury
Ø compulsion = threats of vengeance by the gang
Ø Bradbury was instructed to assist the killing – drove professional to the house
Ø he drove away once the deceased was killed, helping professional escape justice
Ø charged & convicted of murder
Ø didn’t take sufficient steps to avoid the compulsion
o unwillingness to kill doesn’t save the fact that he was willing to join the gang

**these show that no person was entitled to take the life of an innocent party to preserve their own**

Currently:
leading case on killing under necessity à Goliath

Facts:
X & Y were walking and approached Z
Y accosted Z and asked him for a cig and money
Z said “no money” à Y stabbed Z & ordered X to tie Z up
X was hesitant – Y threatened to stab X if he didn’t tie Y up
X co-operated, Y stabbed Z 12 times which caused Z’s death

X & Y carried Z’s body & Y told X to remove Z’s clothes, X complied
X couldn’t have avoided the threats to his life by fleeing

Charge:
X – accomplice to murder
^ role was limited to assisting Y by binding deceased’s hands and stripping him
trial court: acquitted due to acting under Y’s compulsion
appeal court:
- Rumpff à
o it is only obiter that killing cannot be justified by compulsion
o can constitute a complete defence
§ only where the compulsion was so strong that a RM in the circ. couldn’t
have been expected to resist the compulsion
§ Hercules
• nature/degree + circ. of duress: RM wouldn’t have done the same
• considers a hybrid approach of adopting a CH conviction
o left open whether it excludes unlawfulness or fault
o whether an acquittal is justified will depend on the
circumstances of each case in considering the whole factual complex
- Wessels à
o compulsion can’t justify the killing of an innocent person
o should rather be a factor affecting MR than unlawfulness
§ ABSENCE OF A BLAMEWORTHY STATE OF MIND
§ guilty of CH where behaviour isn’t wholly excusable
o Hercules
§ where there was intention to kill but compulsion renders it excusable –
the verdict should be CH
o Mandela later takes a similar view
o contemplates whether one can “reasonably expect the accused to act otherwise”
o ^ normative theory of culpability

**partial excuse rule has been rejected – can’t be CH if killing was intentional
**mistaken belief that a compelled accused is acting lawfully might bring about a CH conviction

Y – murder
trial court: convicted & sentenced to death

**this judgement means that courts will not likely accept compulsion as a complete defence**

English Pragmatism

- Lynch à complete defence if sufficient evidence to support necessity for 2nd principals
o unclear distinction between principals in 1st and 2nd degree
- Abbott à defence not available to 1st degree principals
- Howe à withdrew defence entirely
o either had to extend either Lynch to 1st degree principals,
o or deny defence completely
o raises the question of whether human beings should be held to heroism
o duress is judged objectively, by the standard of a RM

German Excuse

- Perka
o necessity as justification v excuse
- justified if:
o imminent & otherwise unavoidable danger to legal interests, appropriate &
endangered interest outweighs right to life
- excused act
o remains unlawful, therefore self-defence is available to the attacked party

Necessity Case Law

Bailey ‘82
Ø two prisoners charged with murder of a 3rd prisoner
Ø accused 2 said “compelled by 1”
Ø court a quo
o RM wouldn’t have yielded to compulsion
o but subjectively may have erroneously believed life was in danger (putative necessity)
o guilty of murder
Ø appeal court
o despite genuine belief of fear, still acted with knowledge of unlawfulness
o distinction between ‘colourless intention’ & ‘intention w knowledge of unlawfulness’
§ differs in the degree of blameworthiness
§ acting in the later is more blameworthy than the former
o objective test
§ coercion was not of such a nature that a RM in 2’s position would’ve yielded
o confirmed murder conviction

Canestra ’51
Ø convicted of catching undersized fish
Ø argument of necessity cannot pass where the interest threatened is economic

Pretorius ’75
Ø convicted of exceeding the speed limit
Ø child overdosed on Disprin – life was in danger, rushed to hospital
Ø does necessity exclude unlawfulness or fault?
o “suffering evil or breaking the law, and choosing to break the law”
o same effect if brought about by circumstance or human agency
o RELATES TO UNLAWFULNESS
Ø no unlawful attack made on accused when necessity is raised
Ø no direct bearing on MR
Ø requirements for defence
o endangered legal interest
o imminent or commenced threat
o not caused by accused’s fault
o necessary to avert
o reasonable means used
Ø objective test – would a RM believe the threats to be true?
o still put in the position of the accused

Adams; Werner ’81

Ø convicted of contravening Group Areas Act
Ø housing shortage in JHB for Indians & Coloureds
Ø whether something constitutes necessity depends on the facts
Ø critical housing shortage is comparable to Canestra’s livelihood
o necessity cannot be a defence

Mohamed ‘38
Ø warrants issued for the arrest of accuseds for abducting a girl
Ø police were accompanied by people, some armed
Ø accuseds were warned of probable attack
o therefore refused to open door for cops – obstructing ends of justice
o fear of attack was reasonable & must be judged in light of this
o their conduct was not disproportionate to the evil
§ justifiable

Werner ’47
Ø prisoners of war in SA
Ø X ordered 1 to execute deceased
Ø 2 said he took part in killing because of fear
Ø X had no authority to order accuseds to execute deceased
Ø accuseds were under no duty to obey the order
Ø no evidence of imminent or commenced attack, merely threat of reprisal

Bradbury ‘67
Ø accused joined a gang – initiation was to kill
Ø claimed necessity for driving the murderer to the deceased & facilitating his escape
Ø sentenced to death by court a quo
o Steyn CJ dismissed the appeal
o Van Blerk JA
§ became a member of the gang voluntarily & was aware of their dealings
o Holmes JA
§ as a general rule – no man who voluntarily joins a gang can rely on duress
§ each cased to be judged on its facts
§ he resisted the murder for over a month & played a minor role
• death sentence should be replaced by 20 years in prison
Mandela ‘01
Ø accused charged with multiple offences
Ø raised compulsion to all 3
Ø member of a gang
Ø even though in Goliath – there is a possibility of a complete defence of necessity to murder
o acquittal depends on circumstances of each case
Ø evidence given could not raise a reasonable doubt regarding his guilt
Ø conviction is upheld

Consent

- affects the UNLAWFULNESS element of the AR à ground of justification

- operates as a defence in limited circumstances
o crime is about the harm done to society as a whole, not just to the victim alone
o consent will never serve as a justification for murder
o some crimes require “without consent” in it’s definitional elements
§ rape

Requirements

1. must be recognized by law as a possible defence

2. must be real
3. must be given by someone who is able to consent

FIRST REQUIREMENT
“Recognized by Law”
^ must be a crime of such a nature that the law recognizes consent to the act, as a GoJ

Ø crimes specifically against the state can never be consented to

Ø there are only a handful of crimes where consent may be applicable
o crimes where the absence of consent is part of the definitional elements
§ eg. rape – if one consents, it does not constitute the definition of the crime
§ not an actual GoJ – won’t be a crime if there was consent
o crimes where it may serve as a GoJ
§ eg. theft, injury to property
§ must meet all 3 requirements as set out above
o crimes where it sometimes serves as a GoJ
§ eg. assault
• sporting-events and medical treatment allows for consent to justify any
physical harm caused that can normally be expected in these categ.
• sexual & religious aggressions – consent is justifiable subject to limits
• Collet/McCoy – agmt in employment contract does not equal consent
§ individuals consent to the impairment of their own interest isn’t always justified
• criminal law has the community’s interests to protect too
§ often pubpol will determine if consent will serve as a GoJ in a set of facts

Ø rape
o evidence of consent will negate liability, doesn’t meet definitional elements
o “unlawful, intentional sexual penetration of another without consent”
o consent here is not a true defence – rather absence of a definitional element
o sometimes consent will still not serve to justify the conduct
§ eg. under 12 consent doesn’t amount to consent in the eyes of the law

Ø theft
o owner’s consent to taking of / damage to private property renders the act lawful
o consent constitutes a defence because the purpose of criminalizing the conduct is –
§ to prevent non-consensual dealing with another’s property

Ø voluntary euthanasia & dignity

o consenting to bodily harm or killing cannot allow for consent to be a valid defence
o Clarke v Hurst NO
§ LCC (as informed by constitutional norms)
§ wife was curatrix of husband (who was in a persistent vegetative state)
§ wasn’t acting unlawfully in authorizing the withdrawal of life-support
§ according to common law there may be circumstances where allowing one to
die under controlled medical conditions is not contra bones mores
o SALRC
§ specific circumstances may justify euthanasia
§ life-sustaining treatment may be refused by a competent person
§ terminally ill patients can be prescribed life-shortening drugs by authorized
persons
§ recommendation
• should be legal if it involved passive cessation of life

Ø assisted suicide
o Hartmann – convicted of murder
o Grotjohn – convicted of murder
o SA: unlawfulness of helping one to die with dignity is open for discussion
§ Clarke v Hurst – under certain circumstances it may be justifiable
• bona fide medical context (must have 2 medical assessments)
o no chance of recovery or Ql of life, will die with dignity
• approval by close family and/or court
• existence of a living will (like a ‘Do Not Resuscitate’ order)
• assisted killing is a passive omission, rather than positive act

Ø medical treatment
o consent to run the risk of serious bodily harm or death will justify assault/CH/murder
o Stoffberg v Elliot –
o doctors have a duty to inform the patient of material risks of harm
§ open to a court to determine materiality
§ non-material/negligible risks do not have to be disclosed
o if unconscious and therefore can’t consent
§ may still be justified under necessity
o against one’s will – unjustified
o need to protect children & vulnerable persons from medical experimentation
§ National Health Act regulates experimentation/research

Ø disciplinary chastisement
o employees (abuse of power & authority)
§ McCoy – consent by employee to be caned didn’t justify the assault
§ Collett –
• pubpol doesn’t recognize agreements that empower employers to
inflict corporal punishment
• the employee’s consent won’t serve as a defence

Ø sadomasochism, religious mortification, scarification

o UK: Brown – look at nature of the harm inflicted + intention of inflictor
§ if bodily harm was intended, consent will not justify the assault

§ unless, activity has sufficient social utility to be considered an exception

§ if the harm falls short of ‘serious injury’ – consent may justify the act
o US: can be a defence where harm is not serious
§ ‘not serious’ lacks precision
§ suggestion of changing it too ‘grievous or serious’
§ nature of harm inflicted if only one factor to weigh in
o New Zealand: argues that Brown downplays victim vulnerability
§ must consider – autonomy, dignity, privacy, victim vulnerability, social utility,
religious practices, rationality, mental state of inflictor
o SA: seriousness is not in itself decisive
§ mostly governed by degree of injury & pubpol
§ injury that may lead to the risk of death – contra bones mores
§ has yet to be faced with the heading issues
• will attempt to avoid making ‘blanket decisions’
§ extent of physical/psychological harm, age & relationship of parties
o religious purposes
§ Njikelana – X rubbed powder on Y’s genitals (believed it was an aphrodisiac)
• caused Y pain, but X was not convicted based on Y’s consent
§ Sikunyana – X burned Y with coals to exorcise an evil spirit
• highly dangerous practice à can’t be rendered lawful

Ø sports/entertainment
o duels, Russian roulette etc. is unlawful – consent doesn’t render it lawful
o where it is lawful: there are rules designed to prevent injury (don’t have to be formal)
§ participation indicates voluntary consent
§ where serious injury is unlikely to result – consent will justify conduct
§ where it happens ordinarily, eg. rugby tackle, injuries are tacitly consented to
o serious intentional injury will not be ordinary and consent will never justify this conduct
o entertainment
§ consent only applies if the person responsible for injury could reasonably be
believed to have confidence in the safety of their performance

SECOND REQUIREMENT
“Real”
^ must be given voluntarily, without coercion à always a question of FACT

Ø consent obtained due to violence, fear or intimidation is not voluntary consent

Ø consent must be active
o mere submission is not enough
o may be tacit or express (no qualitative difference between the two)
o Swiggerlaar – circ. must be considered to determine if passivity = tacit consent
Ø voluntariness of consent may be impaired by mental or physical condition of person giving it
o must be capable of consenting
Ø fraud may nullify consent
o consenting to sex due to fraudulent non-disclosure = rape
o generally – victim’s consent is not real if the consent was due to a fraud
o MUST BE AWARE OF ALL MATERIAL FACTS REGARDING THE ACT
o materiality depends on definitional elements of the crime
§ if made as error in:
§ negotio – consents to one act but a different act is performed

• if the actual act is consented to, but for a different reason –

o still consent (Williams; K)
• where the act is consented to but the risks are misled
o the victim’s consent must cover the harm that is the subject
matter of the charge – a person can’t consent to that which
they don’t know about – risk of contracting an STD is too
closely linked to sex – one who is aware of their status is
obliged to disclose such information to the potential partner
o non-disclosure of HIV status may counter the consent given
§ will lead to a conviction of rape & attempted murder
§ Nyalungu
§ personum – consents thinking it is person A, but actually person B
Ø must be given before or at the time of the act, consent cannot be ratified
Ø withdrawal of consent is possible if it is withdrawn before the act has begun (Robinson)

THIRD REQUIREMENT
“Capable of Consenting”
^ must have mental capacity to understand the nature of the act & its consequences
may be lacking due to – youth, mental defect, intoxication, unconsciousness

Ø for age – consider: intelligence, life experience, education, social background

Ø NB for rape –
o under 12 consenting is never acceptable (always rape)
o under 12, over 16 consenting isn’t common law rape, but a statutory crime

Putative Consent

- genuinely but erroneously believed accused was consenting

- may negate the MR, because of lack of knowledge of unlawfulness
o in SA – rape is a crime based on intention (:. putative would pass as a defence)

Consent Cases

1. Collett –
• pubpol doesn’t recognize consent by an employee to be corporally punished by an employer
• corporal punishment (CP) by employer on employee will be assault, despite consent
• can’t be equated to corporal punishment inflicted by parent on child
• consent depends on pubpol
o pubpol dictates that justifying such behaviour might lead to gross injustice
o any punishable offence by employee must be dealt with by a court
§ employers can’t circumvent ordinary process of the law
§ employees can’t choose to be punished by an employer over the law

2. McCoy
• accused caned victim
o victim committed offence of not fastening seatbelt on plane
o accused argued consent
• consent under duress does not constitute real consent
o fear of retrenchment can’t be considered free and voluntary

3. Sikunyana
• exorcism – being burnt by live coals to rid an evil spirit
• consent by the injured person cannot negate unlawfulness of the infliction of bodily harm
• victim was badly burnt and sustained severe injuries
• definition of assault = act of intentionally & unlawfully applying force to a person…
o not necessarily unlawful when a person consents to the application of force
§ LIMITED APPLICATION
§ difficult to draw the line, therefore, pubpol must determine what is acceptable
• can’t be equated to a medical practitioner who inflicts bodily harm by conducting an operation
• exorcisms are highly dangerous and designed superstitiously
o cannot be rendered lawful
o any infliction of harm that isn’t recognized as a normal practice of society cannot be
deemed lawful by the consent of the injured party
• distinguished from Njikelana
o powder placed on genitals of woman weren’t recognized as inherently risky +
o she consented to the application of the powder
o the application by the accused cannot be deemed to be assault

4. Brown
• sadomasochism –
can consent negate the unlawfulness of the infliction of bodily harm for sexual gratification?
o activities were unpredictably dangerous
o majority – lack of consent needn’t be determined; regardless of consent à LIABLE
§ harm was both intended & caused
o has to be considered by pubpol
• nailing scrotum & burning penis
• claim: when there is no actual bodily harm caused – consent might suffice as a defence
• sadomasochism is involved with the infliction of cruel, not incidental violence
• “society is entitled & bound to protect itself against a cult of violence”
5. Stoffberg v Elliot
• if a person’s body is interfered with unjustifiably –
they have been wronged and are entitled to damages
• if the interference is consented to – can’t be wrongful
• S consented by implication
o went to hospital, and consented to have op that was immediately necessary
o **by entering a hospital – he did not consent to any surgery
§ any op performed where consent wasn’t obtained is an infringement
• in cases of urgency, where obtaining consent is nearly impossible – it may be justifiable
o eg. unconsciousness
o this wasn’t the case – he consented to having stomach surgery, not to having his
penis removed
• the fact that E didn’t obtain consent & wasn’t his fault consent wasn’t obtained is irrelevant

6. Robinson
• deceased asked 3 accused’s to kill him – then withdrew his willingness to be killed
• accused 1 still shot him anyways, found that accuseds 2&3 had no DE wrt. killing
o accused 1 acted outside the common purpose
o accuseds 2&3 only had MR to kill the deceased where he ‘consented’
• accused 1 – murder; accuseds 2&3 – attempted murder

Degrees of Participation

Degree of
Participation

Involved Before Involved After
Completion Completion

Perpetrators or Accessories or
Principles Accomplices

Personal Imputation

Overview:
- three types of people involved in a crime
1. PERPETRATOR
2. ACCOMPLICE
3. ACCESSORY
- 1 & 2 are participants – they either commit, or promote the commission of a crime
- 3 is not a participant
Perpetrator
Ø all requirements of liability must be met by such an accused
o conduct, circumstance, culpability (sometimes conduct is imputed à doctrine of CP)
Ø must consider definition of crime + whether accused meets this definition (Williams)
Accomplice
Ø doesn’t satisfy the requirements for liability in the definitional elements
Ø doesn’t qualify as a co-perp under doctrine of CP
Ø unlawfully & intentionally furthers the commission of a crime committed by someone else
Ø consciously associates self with commission by assisting perp
o giving advice, supplying information, giving means/opportunity to commit crime
Ø eg. marriage officer who presides over the marriage of an already married person
o bigamy is a crime – the marriage officer didn’t meet the definitional elements
BUT did authorize the marriage which resulted in the crime of bigamy
Accessory After the Fact
Ø unlawfully & intentionally helps the participants escape liability after commission

**perpetrators will be covered in CP; accessories after the fact is not examinable**

Accomplices
- one who takes part in the commission of the crime, but is not a perpetrator
- liability is different from a perpetrator’s
o based on their own unlawful conduct & MR
- there can’t be an accomplice without a perpetrator
o role of an accomplice is accessory in nature

Williams
• accomplice v perpetrator
o perp – complies with definitional elements of the crime
o accomplice – lacks the AR of a perp
§ associates himself with the commission
§ knowingly affords perp with means, opportunity, information
§ must be a causal connection between accomplice’s assistance & the
commission by the perp
§ liability of an accomplice is based on their conduct not the perpetrator’s
• commit a crime in their own right
• this is a crime separate to the one committed by the perp
Elements of Accomplice Liability
1. Unlawful Conduct

Ø Wiliams – furthering the commission of a crime

o facilitating, encouraging, giving advice, ordering commission
o problems:
§ must it be a causal contribution?
• Khoza –connection between accomplice’s conduct & perps conduct
§ can an omission further a crime?
• generally – no; unless there was a duty to act
• Shikuri
o employer was being driven by employee
o employee had an accident, didn’t stop
o employer’s failure to control employee’s actions à liable
§ can an accomplice be an accomplice if the perp doesn’t know he’s helped?
• complicity is a crime in and of itself – doesn’t matter if perp knows
• Ohlenschlager
§ what is the degree of accessoriness?
• Williams
o someone else must have committed the crime
• limited accessoriness
o must be unlawful conduct by perp, but N/A if perp lacked MR
o accomplice will be convicted regardless of whether perp is
o Parry – guilt isn’t dependent on the principle’s
• strict accessoriness
o perp must have committed the crime with requisite MR
Ø in murder cases – no distinction between a perpetrator and accomplice (Khoza)
o once someone is dead, you cannot ‘further’ the death
o Safatsa – excludes possibility of convicting someone as an accomplice to murder

2. Fault

Ø must be an intentional assistance, negligence is insufficient

Ø DE suffices
Ø Masingili
o intent must relate to furthering the specific crime
Ø De Blom
o must have knowledge of unlawfulness

Punishment of Accomplices
n depends on extent of participation
n usually plays a more limited role than the perp & will likely receive lighter punishment
n sometimes accomplice may play a more substantial role (eg. in planning)
Case Law
Jackelson
- black people were brewing liquor was an offence
- white farmer allowed blacks to brew
- can a white farmer be convicted as an accessory if it isn’t possible for a white to be a perp?
o if there is any cooperation between the one who assists and the one who commits
§ accessory
• crime in and of itself to assist
Mbande
- mere failure by someone to warn police or victim that a crime will be committed does not
constitute an omission by an accomplice
Parry
- 2 accused charged with murder
- perpetrator didn’t have capacity, could second accused be convicted as an accomplice?
o YES – limited accessoriness
§ accomplice’s guilt isn’t dependent on the perp’s
Rasool
- where the perpetrator cannot be convicted under GP’s, there can be no accomplice
Kellner
- buyer of illicit goods can be convicted as an accomplice of the seller
Williams
- four accused
- 1 & 3 convicted of murder, 2 & 4 as accomplices
- 2 knowingly assisted in the commission by holding him down – furthered– appeal dismissed
- 4 was passive – none of his actions helped further – merely moved body – appeal upheld
- WILLIAMS WAS DECIDED WRONGLY
o there can be no accomplice to murder
§ one cannot further the commission without causing the death
(missing à M; Megson; White; D)

Common Purpose
(originated in English Law)
aims to overcome the prosecutorial problems in consequence crimes, of proving causation between each
individual’s conduct and the unlawful consequence**
^ technically an infringement on the presumption of innocence

not restricted to homicide – robbery, treason, public violence, assault, housebreaking

perpetrator
Ø conduct, circ, culpability satisfies requirements for liability under the crime’s definition
Ø conduct didn’t comply but acted with the one whose did (doctrine of CP)
Ø if 2+ act together and comply with definition of perp à co-perpetrator
Ø commission through agency (except in ‘einhandige dade’), still satisfies commission
o direct and indirect perp’s have the same consequences
o exception – autographic crimes eg. common-law rape
Ø liability is not accessory in nature like an accomplice

In Answering a CP Question
1. identify that it is CP
2. active association/all in agreement
3. was there prior agreement
4. Mgedezi rule

when 2+ people agree to commit a crime or actively associate in a joint unlawful enterprise,
each will be responsible for specific criminal conduct committed by one of their number which
falls within their common design

**the prosecution must merely establish that

they agreed to commit / actively associated themselves with the commission by one of the members
+
requisite MR
(i.e. there is no need to prove BRD that they all did something to causally contribute)
(there is also no need to determine exactly who committed the act)

impossibility of being an accomplice to murder

• the element of causation makes the definition too wide to have any accomplices
• either
o convicted on ordinary principles of liability & causation specifically
o convicted on doctrine of common purpose
§ causation is bypassed
§ must merely be a causal connection between the acc’s act & vic’s death

The Doctrine of Common Purpose

Ø it is difficult to determine with certainty exactly who finally caused death

Ø usually simple enough to find certain unlawful conduct + blameworthiness of each member
Ø CAUSATION GIVES THE MOST PROBLEMS
o it must be accepted that it wasn’t one member of the group that caused the death
o cannot say for sure that any of the members caused the death on their own
Ø Malinga – conspiracy to commit robbery, one fired at police
o court imputed the act of firing to the group
o fault will never be imputed – must be proven individually

Main Principles
if two or more people, having CP to commit a crime, act together to achieve it;
then the execution of the CP is imputed to the others
doesn’t require that each member to know/foresee exact details
each member must have the intention to murder & assist each other in doing so
once MR of each is proven – conduct & causation can be imputed to others
**has passed constitutional muster – Thebus
^ by co-operating in one’s criminal act –
the right to claim that the conduct shouldn’t be imputed is lost
imputation rule dispenses the normal requirement of causation in consequence crimes
(no evidence need be brought)

Ø if 2+ people, w. CP to commit a crime, do so – the conduct is imputed to the others

Ø in consequence crimes – the imputation of the conduct includes causation
Ø conduct by a person that differs from the CP conduct cannot be imputed to others
o unless – knew OR foresaw possibility that conduct of a different kind might be
committed and acted recklessly to this foresight
Ø acting together in CP doesn’t require proof of prior agmt – inferred from their conduct
o “mandate”
Ø CP may be based on active association
o Du Randt (CP may be tacit & inferred from conduct i.e. active association)
§ A had a knife and assured B he would only use it to intimidate
§ guard interjected robbery by attacking A, B tried to come to A’s rescue
§ A stabbed the guard
§ because B actively associated himself with the attack by A on the guard – A’s
conduct must necessarily be imputed to B
o in murder – active association must’ve been when deceased was still alive
& before mortal wounds were inflicted
Ø CH charges
o if there was CP to commit robbery or assault & conduct of @L 1 resulted in
death – causation will be imputed to other members, but negligence will not
§ MR must be proved for each member individually
Ø crimes that can be committed through your own body only, will never be imputed

Safatsa
• 100 people attacked Y in his house – set him alight
• 6 appellants
o grabbing hold, wrestling, throwing stones, exhorting the crowd, forming part of the
crowd, making petrol bombs, setting house alight à CONDUCT
o Appellate Division
§ convicted of murder based on doctrine of CP
§ rejected defence that there had to be a causal connection between their
individual conduct & the death – found that none contributed causally to death
§ active association with the CP was sufficient conduct to convict the accuseds

Prior Conspiracy (mandate) & Active Association (AA) in CP

n AA is wider than agreement (agreement is a form of AA)
o the scope of AA is very uncertain, inherently vague
o Mzwempi
§ restricted definition of AA

§ association with general design is insufficient to impute conduct

• membership with a political party (eg. Nzo), faction, tribe
§ must AA with particular conduct which caused the unlawful consequence
• similar to the AR required for accomplice liability
n difficult to prove mandate (i.e. prior agreement) : . AA very important for CP
n proof of mandate à easy to infer active association
o must just prove there was agmt regarding wide & general common design
o no requirement to be present at the scene if mandate can be proven
n without proof à more difficult
o must be proof of association with the specific act
o Mgedezi Rule - five requirements to prove AA:
§ much more restrictive than liability in arising from mandate
§ presence at the scene
• only relevant if there is no mandate
• doesn’t disregard general rule –
that one can procure another to commit the crime in one’s absence
§ aware of the crime committed by someone else in CP
§ intention to make common cause with person committing crime
• must consciously share common purpose
• fact that two people have the same goal without knowledge – not CP
§ manifested sharing CP by some act of association
• tacit approval by spectator – still not necessarily proof of AA
§ intention to kill
• de is sufficient, dd, di

Autographic Crimes
Ø can only be committed through instrumentality of person’s own body
Ø CP cannot apply
Ø eg. common law rape – if one held down but didn’t penetrate – accomplice & not perp
Ø other eg. perjury, bigamy, DUI

Constitutionality
Ø Thebus
Ø doesn’t infringe right to dignity & freedom
Ø rationally linked to a lawful aim i.e. combating crime by people acting together
Ø without the doctrine – would never be able to convict
Ø CP in the form of AA passed constitutional muster in this case
Ø CP is a departure from general principles of criminal law
Ø reason for the doctrine à crime control
o alleviates the burden of proving causal contribution of each party
Ø must be a balance between crime control and constitutional right to presumption of innocence

FACTS OF THEBUS
- 1 & 2 were identified as part of a group who were protesting against drug dealers
- one of the dealers opened fire on protestors, some protestors returned fire
- 7 y/o girl was killed; 2 were wounded
- 1 was standing near a vehicle holding a pick handle (1’s alibi was rejected)
- 2 was holding a firearm, but wasn’t seen shooting
- trial court: guilty through doctrine of CP
o both appreciated the possibility that violence could erupt & people might be killed

o by continuing to participate – acted recklessly : . dolus eventualis

- appeal court: upheld convictions
- granted leave to appeal to CC
o upheld the constitutional validity of Mgedezi Rule
THEBUS CRITIQUE
- should there not be a difference between “small organized band of criminals” vs “large
amorphous group”
- should imputing conduct to others in terms of AA of large amorphous groups be
unconstitutional?

Withdrawal
Ø disassociation may negate liability
Ø Beahan – if only conspired to commit, but gave co-conspirators
timely & unequivocal notification of decision to abandon the common unlawful intention
Ø Nduli – prior agreement & no dissociation (mentioned ^ in obiter)
Ø Musingadi –
o accused was a domestic on a heavily secured farm & was given strict instruction not to
allow anyone onto the premises
o deceased was assaulted & strangled to death + attempt to poison
o cash was taken, no signs of forced entry – assumed it was the domestic
§ domestic called in 3 men to assist (wouldn’t have gotten in w/out her)
§ obvious conspiracy to rob à proved brd
o attempted poisoning + death by strangulation
§ however the deceased died – was part of the plan: domestic convicted with dd
§ convicted 2 other accuseds based on de
• deceased was captive because of their conspiracy to rob
• when they left – deceased was still bound & knew domestic wanted to
kill her
• must have known & therefore did know that deceased was powerless
to withstand domestic’s strangulation
o was CP to rob extended to include CP to kill?
§ If yes – were other accuseds successful in withdrawing from the extended CP?
§ there was extended CP, did they do enough to dissociate?
• not every act of disengagement constitutes sufficient withdrawal
• the greater the participation + the further the progression à
the more is required from the accused to effectively withdraw
o in casu – should’ve at least untied deceased
take home from Musingadi – to determine whether withdrawal was effective; consider:
manner/degree of participation,
how far the crime had proceeded,
manner & timing of disengagement,
steps that were/should’ve been taken to prevent completion
Ø no specific rules in SA – overall value judgement
Ø must be:
o CLEAR & UNAMBIGUOUS INTENTION TO WITHDRAW
§ Singo
• angry mob killed an old woman for “bewitching” an epileptic girl
• threw 2 stones at deceased but allegedly left the scene before mortal
wounds were inflicted on her because he was injured by the crowd

o trial court – didn’t leave because he changed his mind; left

because he was sore à no proof that intent was now absent
• there were two assaults – second was fatal (was appellant part of this)
• there was no prior agreement!! but rather: ACTIVE ASSOCIATION
o must have common intent to commit the crime & there must
be an active association with the conduct for there to be CP
o withdrawal = absence of one of these two elements ^
• left the scene + abandoned intention to kill by going to bed
o couldn’t have done more to desist – it was effective
o can’t be convicted of murder
• but – still initially had intent to kill, must be convicted of attempt
o THERE MUST BE SOME +VE ACT OF WITHDRAWAL
§ Nomakhala
o VOLUNTARY
§ Nzo – chose to go to the police
o BEFORE THE COMMENCEMENT OF THE EXECUTION
§ (depends on facts of the case)
§ Ndebu
o TYPE OF ACT FOR WITHDRAWAL TO BE EFFECTIVE DEPENDS
§ difficult to formulate general requirement
• if possible to communicate – should
• if attempts to dissuade others – likely to be successful
• ^ mere attempt of the above 2 are usually, (not always) sufficient
o ROLE PLAYED IN DEVISING THE PLAN TO COMMIT THE CRIME
§ strong influence on what that person must do to dissociate
§ relatively small role will probably dissociate easier than prominent perps
§ prominent
• might have to actively dissuade, inform police etc.
§ even if succeeds with withdrawal – may be convicted of conspiracy

Joiner-In
Ø someone in CP already inflicted mortal wound, but victim still alive, joiner-in who wasn’t initially
part of CP, joins and inflicts another injury to victim, and victim dies from initial wound inflicted
Ø joiner-in associates himself with the CP where the mortal wound is inflicted, but victim still alive
o Khoza – need to distinguish between when joining in occurred
Ø Mgxwiti – even though conduct wasn’t causally linked – ratified the prior conduct – GUILTY
o (AD approval in Khoza, provincial approval in Dlamini)
o no longer applicable – REJECTED in Motaung
Ø if injury by joiner-in hastened death
o causal connection – convicted of murder
Ø if injury takes place after death occurs
o can’t kill a dead person – physically impossible – convicted of attempted murder
Ø if found to be a previous conspiracy
o doctrine of common purpose will arise – conduct imputed + fault must be proven
o **joining-in usually presupposes an absence of CP
Ø joiner-in should still be punished
o Motaung –
§ joiner-in can’t be convicted of murder, rather attempted murder
• at the time joiner-in inflicted a wound, all the acts that would cause
victim’s death were completed

• can’t convict joiner-in for acts that happened retrospectively

• shouldn’t be convicted of a crime committed by someone else simply
because the joiner-in ratified the completed conduct
§ where there is a reasonable possibility that the joiner-in came after the mortal
wound was inflicted & did nothing to hasten the death: attempted murder
§ where death is hastened – might be found guilty of murder

Fair Labelling Argument in the Context of CP

Ø people shouldn’t be labelled as co-perps if they merely associated with the principle offender
where the role they played was relatively insignificant

Nzo
- appellants = ANC members
- Joe (another member of ANC) killed X
- no prior agreement
- appellants were charged with X’s murder
o trial –
§ couldn’t be held as co-perps for murder
• didn’t take part in the killing, no evidence of CP
§ BUT found CP for sabotage – should’ve foreseen possibility of fatalities
• inferred that appellants did foresee the possibility of an informer being
killed
§ FOUND GUILTY OF MURDER BASED ON CONTINUOUS PARTICIPATION
o appeal –
§ didn’t challenge possibility that death was foreseen
• were aware of threat & warning
§ argument that ANC is such a large organization – continued participation in
the campaign cannot absolutely mean there was AA regarding the murder
• HOWEVER à campaign = terror & destruction, murder resulted from
the campaign – should be convicted
§ appll 2: sentenced
§ appll1: dissociated himself effectively to escape conviction (WITHDRAWAL)
• no intention to make common cause with actual perp
• voluntarily gave evidence to the police
§ dissenting minority judgement by Steyn
• sabotage was not sufficiently closely connected to death
• shouldn’t be convicted of murder
• CP requires legal & factual proximity of the participant to the
commission

Requirements for CP Liability

(Fault, Unlawful Conduct)

1. Fault
Ø intention or negligence may suffice, depending on the crime
o dolus eventualis
§ Molimi – de is a sufficient form of intention where intention is required
§ Nhlapo
• accuseds went to rob Macro

• security guard was shot as a result of the confrontation

• court a quo – murder
• appeal – not sufficient to acquit
o there was a good chance the guard was shot by another
security guard and not one of the perps
o court accepted ^ but said – if you participate in a gun fight – it
is likely that someone might die – it needn’t be your bullet that
kills the person in order to be convicted – you have already
associated with the gun fight (doctrine of CP)
§ Lungile
• person killed during a gunfight
• death in a gunfight is always reasonably foreseeable
o whose gun the fatal bullet comes from is N/A
Ø (Snyman)
o if multiple people have CP to commit robbery/housebreaking
§ mere fact that there is intention to do ^,
doesn’t necessarily mean there was CP to kill
§ there should be some extent of similarity between the two crimes
§ intention must be decided on the facts of the case
• if member who did not ‘actually’ kill – foresight & reckless – DE
o eg. knew there was a weapon / knew people would resist
o INDV. MR MUST BE PROVEN DESPITE IMPUTATION
o Mgedezi – where circ. turn out differently to CP goal; depends on facts of the case
Ø nothing different to GP about the MR of the individual in CP

2. Unlawful Conduct
- significant departure from general principles
- not necessary to prove BRD causation for each individual
- conduct of “non-causer” = participation in CP

WHEN SHOULD FAULT BE ASSESSED?

- Nkwenja
- there was CP to rob, death of victim was reasonably foreseeable, but not actually foreseen
- at the time the minor wounds were inflicted
o not foreseen by perps, arguably not reasonably foreseeable either
- majority
o critical moment = when CP was formulated
o Burchell
§ not accounting for the fact that ∆ in mental state equates to the outdated
vesari doctrine
§ no reason for ∆ in mind not to be considered when thinking about principle of
contemporaneity (AR & MR must coincide)
o held liable for CH because MR was assessed at the time CP was entered
- minority
o critical moment = when unlawful conduct was committed by perpetrator
o (Burchell prefers)
o courts must take account of any change in mental state
§ should still be liable for conspiracy

CAN THERE BE A CONVICTION OF CH (REQUISITE FAULT = NEGLIGENCE)?

- Mgedezi
o CP that is merely co-incidental is not sufficient to impute conduct
o must be a conscious shared agreement
- arguable – no, CP is based on common intention à can’t have intention to be negligent
- CH conviction is now possible to avoid issues of causation (Magmoed, Safatsa, Nkwenja)

- Nkwenja
o negligence may be sufficient
o if a party did not foresee that the perp would kill, but a RM would’ve – CH conviction
o possible for the perp to be guilty of murder & others only of CH
- Safatsa
- facts
o brutal murder of mayor by 100 people
o 6 accuseds were identified and charged & convicted of murder
§ no proof that any of the 6 actually caused the death
§ BUT, each were part of the CP intention to cause the death
- held
o act of causing death that is attributed NOT the culpability
o only the causal nexus between perp’s conduct and death can be imputed
o culpability is always determined individually
o if a group agree to a commit a crime other than murder, and someone dies
§ act of causing death can be attributed to others, but fault must be proven indv.

Sam’s Tut Set-Up:

1. AR
Ø unlawful conduct
Ø attribution (Malinga)
o within CP – can attribute unlawful conduct from 1 accused to another
§ all members are liable as principals
2. MR
Ø prove subjectively for intention (Nhlapo)
o each actors blameworthiness must be proven individually

CP
• mandate
o 2+ people agree to commit a crime together
o (situation in these facts)
• active association
o joiner-in
o Mgedezi
§ presence @ scene
§ awareness of the crime
§ intention to make CP with those perpetrating the crime
§ manifestation of sharing some CP with perps of the crime by performing some
act of association with conduct of others

Dissociation from CP
• Singo
o 492 Burchell
o disassociation by CP from mandate / AA must be distinguished
§ mandate
• much stricter & more stringent
§ AA
• composed of 2 essential elements
o common intention
o intention to AA in the crime
o as soon as 1 is missing – effectively disassociated
• Musingadi
o 4 elements to consider for effective disassociation from CP from mandate
§ manner & degree of accused’s participation
§ how far the commission of the crime has proceeded
§ manner & timing of disengagement
§ steps accused took, or could’ve taken to prevent completion of crime
o VALUE JUDGEMENT BASED ON THE ABOVE FOUR FACTORS

Attempts

- attempts are punishable because of the forward looking purpose of punishment

o DETERRENCE
- degree of direct harm to society is less, therefore punishment is more lenient

AR – unlawful conduct can be either completed or uncompleted

Schoombie
facts
- S went to a shop with petrol & inflammable material
- placed tin against door of shop & poured petrol in + around
- S was stopped by police at the moment he was going to ignite the petrol
- placement of tin + pouring of petrol = sufficient to constitute an uncompleted attempt
• with MR, has done everything set out to do but failed due to lack of skill / unexpected obstacle
o COMPLETED
• with MR, hasn’t completed everything set out to do because of some interruption
(usually outside agent)
o UNCOMPLETED

Completed Attempts
easy case – where the gun is fired, but the bullet misses the victim à ATTEMPT
difficult cases –
Ø Laurence:
did everything he set out to do, but the acts were so remote from the commission of the crime
because he relied on others to carry out the plan
facts
o attempted to contravene Internal Security Act: penalised certain publications
o L wrote an article w. prohibited information; sent it to London to publish in a newspaper
§ information would also circulate in SA
o plan failed where SAPS intercepted before it reached London
o constituted completed attempt: done everything he could’ve possibly done –
rest was out of his control (acts of preparation / acts of consummation N/A)
Ø Nhlovo: (earlier than Laurence & before completed attempts defines in Schoombie)
unlawful conduct hadn’t occurred
facts
o N, knowing it was poison, gave Y arsenite of soda to put in Z’s food
o Y took the poison to Z but didn’t put it in his food – Y&Z went to police
o appeal – incorrectly convicted of attempt to poison
§ Y had no intention of carrying out N’s instructions
§ N wasn’t close enough to committing the crime – no attempt
Ø Laurence & Nhlovo do not reconcile!
o L – couldn’t have done anything more other than actually going to London
o N – could’ve possibly done more to ensure poisoning
(give to someone else to give to Z / do it himself)
§ not a case of completed attempt
Ø Du Plessis
o D appealed conviction of attempting to publish secret info in contravention of
Official Secrets Act
o wrote a letter to London – was a ‘tentative enquiry’ concerning publication
o Laurence was completely different
§ accused actually formulated intention to commit offence

§ did everything in his power

o in casu – neither of the two requirements for completed attempts satisfied
§ commencement of consummation =
intention to commit + degree of proximity + practical common sense
Uncompleted Attempts
deciding whether the conduct amounts to, or falls short of an attempt

Subjective v Objective Enquiry

Subjective – state of mind of accused – i.e. their moral guilt

n liable for merely having the intention to commit the crime
n contravenes the “mere thoughts are not punishable” principle of Criminal Law
o where intentions are translated into even the most minor deeds – liability would arise
n used for crimes that are physically impossible to commit

Objective – danger to the community interests

n acts of accused in pursuance of intention to commit a crime must proceed at least to a point
where the commission of the crime was enough to attract liability
n generally preferred to decide whether acts were remote or proximate to actual commission
o remote = acts of preparation (no liability; even with intention)
o proximate = acts immediately connected to consummation (liability)

Where does Preparation End & Consummation Begin?

**need to draw distinction between end of beginning and beginning of end (B)

Ø impossible to lay out a test – so heavily dependent on facts

Ø little judicial harmony
Ø Katz – practical value judgement must be brought to each set of facts
Ø Du Plessis – whether there was an act of consummation is factual

Tests for Determining Proximity

Sharpe
- attempt = act done with intent to commit a crime,
forming part of a series of acts that would constitute commission save for it being interrupted
- ^ doesn’t sufficiently distinguish between remote & proximate acts

Schoombie
- uncompleted attempts are proven where the court is satisfied that,
at the time the accused was interrupted,
- he intended to complete the crime &
- @L carried out the purpose to the commencement of consummation

1. ‘Commencement of Consummation Test’ (preferable & more reliable)

• Schoombie
o requires wide interpretation –
should include all the last series of acts which would constitute a continuous operation
unbroken by intervals of time, which might have given opportunity for reconsideration
o elements to consider whether consummation has commenced:
physical proximity to crime scene, time interval between apprehension & envisaged

commission, what would’ve happened in the natural course of events, perp in control
of the course of events
• B
o accused was convicted of attempted rape
§ no penetration – couldn’t get an erection & victim menstruating
o where there was a sufficient time interval for reconsideration – acts are of preparation
o attempted rape case
§ parties agreed – in pursuing the agmt – a continuous series of acts
commence, that unless broken off would necessarily amount to intercourse

2. ‘Equivocality Test’
• Schoombie
o steps taken must have reached the point where they indicate brd that there was
intention to commit a crime
o intention more NB than acts
o have acts reached a stage where you can safely say the accused’s mind is decided?

neither test 1 nor 2 is perfect

1 – vague & difficult to apply
2 – deficient that acts may be too remote to infer intention / acts may show intention when it is not there
: . REQUIRES A VALUE JUDGEMENT
(Katz)
- common sense should dictate the weight given to each factor in a case
- in a fair & practical sense: are the acts too remote / proximate enough to constitute an attempt

Acts of Preparation v Acts of Consummation

Ø AoP – not guilty of attempt; AoC – guilty of attempt
Ø AoP
o X prepares a poison, but apprehended before administration (Sharpe)
o X askes Y to buy stolen clothes from X, but apprehended before payment
o X drives to explosive place, but arrested 300km away
o X tries to steal a car and shines flashlight to jack it, apprehended before jacking
o X tries to steal clothes, only throws them out cupboard before apprehended
o X tried to break into a house, only looks through window before apprehended
Ø AoC
o X tries to escape from prison – breaks the window
o X tries to break into a house – puts the key in the door
o X tries to commit arson – puts inflammables in a building
o X tries to do forbidden trade – posts an offer
o X tries to rape Y – only assaults (B)
o X tries to steal phone from bag – only opens bag
o X tries to possess dagga – drives to place & walks to sack

Change of Mind / Voluntary Withdrawal

• Du Plessis – not guilty: ∆ed mind & desisted from commission before intention was formulated
• where a ∆ in mind occurs after commencement of consummation – unlikely to be successful
• ^ Hlatwayo – will be guilty of attempt (confirmed in B, and Du Plessis)
o facts:
o X = servant, put caustic soda in employers’ porridge with intention to poison
o two other servants saw the porridge ∆ colour – informed X, : . X threw it away
o CONVICTED OF ATTEMPTED MURDER
§ acts already reached consummation; ∆ in mind will not serve as a defence

o (arguable that this withdrawal was not voluntary – she was caught out)
§ ^ not good authority for voluntary withdrawal
• must distinguish between completely voluntarily & not entirely voluntary withdrawal
o yet to be considered in SA
• withdrawal in relation to CP
o certain circ. – withdrawal is legally sufficient for acquittal (voluntariness is NB)
• contemporaneity rule
o AR + MR for attempts – only have to exist simultaneously at a point – MR is continuing
• for completed attempts – voluntary withdrawal can only be a mitigating factor
• ^ possible to potentially apply this to uncompleted attempts
o will not always be a defence
o requirement of withdrawal is predominantly subjective
§ can draw legitimate inferences from objective factors
§ can conclude acc is liable for attempting to commit the factually impossible

Fault Element – INTENTION (de suffices)

**negligent attempt is impossible – one cannot intend to be negligent

Attempts to Commit the Impossible

impossible due to
- wrong means (wants to use poison but uses sugar)
o impossibility of means
- doesn’t have qualities to meet definitional elements (crimes for licenced indv only)
o impossibility of subject
- intending to commit a crime but doesn’t meet definitional elements (killing a dead person)
o impossibility of object

Attempt to Commit the Physically Impossible

Davies
Ø accused convicted of attempted abortion
o performed an abortion where the foetus was already dead
Ø where an accused’s criminal purpose can’t be achieved, it cannot prevent him from conviction
Ø objective PoV rejected – endorsed a subjective PoV
o D believed woman was pregnant, act was performed to bring about an abortion
o ^ must be guilty of attempt
subjective approach à
- where conduct is objectively innocent, accused may still be liable for attempt
- ^ doesn’t this contradict the contemporaneity principle?
o where there is MR,
AR can be established for act that would otherwise be innocent

W
Ø attempted rape of a corpse
Ø intercourse with corpse, under the delusion she was alive – if she were alive it would be rape
o should be convicted of attempted tape

Ngcamu
Ø attempted murder of a person in a bulletproof vehicle

**degree of impossibility may be relevant

Ø attempting to steal what you think is another’s pen where actually, it’s yours

versus
Ø attempting to steal by putting your hands into someone else’s pocket, finding it to be empty
o much easier to prove attempted theft ^

Two Exceptions to Davies (i.e. that the attempt to commit the impossible is punishable)

1. statutory crimes – language may preclude possibility of conviction for attempy

2. legal impossibility

Attempt to Commit the Legally Impossible

**achieving what was perceived to be a crime where the conduct does not actually amount to a crime
(putative crime – where you think you’re committing a crime but such crime does not exist)
essentially – a mistake of law, but believing you’re doing something unlawful where it is actually lawful

Ø attempting to commit crimes that don’t exist are not punishable

o if they were – conviction by courts would imply creating new crimes
thus, undermining the principle of legality
Ø liability is determined by objective rules of the law & not by individual’s conception
o purely subjective view that intention alone = crime, is not part of SA law (Davies)
§ must be AR as well
Ø legal impossibility – where X is mistaken about the legal nature of a definitional element

INTENTION OF ACCUSED NB
• whether something is considered an attempt depends on the kind of mistake being made
• eg. theft of a wild animal
o if X thought it was a crime to ‘steal’ a wild animal, this is legal impossibility
o if X thought the animal was captured (i.e. owned by someone), this is physical

Palmos – NB distinction between physical & legal impossibility

- if mistaken about an aspect of a legally recognized offence: PHYSICAL
- if mistaken about the existence of an offence: LEGAL
o i.e. opposite to mistake of law
- one can only be convicted where steps taken, if successfully accomplished, would’ve resulted
in the commission of the intended offence
- if one carries out acts with the erroneous belief that they constitute an offence, no steps were
taken towards the commission of an offence because it does not exist

Theft

unlawful appropriation with intent to steal a thing capable of being stolen

theft is a continuing crime (Cassiem, Philander Jacobs)

Ø as long as the stolen property is in possession of someone other than the owner
Ø consequences
o if original appropriation took place outside court’s jurisdiction, person can be tried
where the property is found, N/A whether it constituted theft where it was taken
o justifies the conclusion that persons who assist after the initial appropriation
aren’t accessories after the fact, but rather as co-principles or accomplices
Ø Cassiem
o woman in a flea market was selling clothes with labels
o police were suspicious, and found R60K of stolen clothing in her house
o argued her husband was the one who stole it
§ theft is a continuing crime – irrelevant who stole it
§ she knew there was something suspicious about the clothing

essential elements:
1) unlawful
2) appropriation
3) property
4) intention

1. Unlawful

- if there is a GoJ, the appropriation of the property will not be unlawful

o necessity
o consent (Gesa; De Jongh)
§ where property is given over “voluntarily” due to threats made –
consent not real, even though it was conscious and intentional
o unauthorized administration
o public authority
- must be against the owner’s will
o even without the knowledge of consent and with the intent to steal – there is no theft
- if de minimus applies: the taking will not constitute theft

2. Appropriation/Taking
idea behind criminalizing theft à preventing indv being unlawfully deprived of benefits of their owned/possessed property
Ø this is the AR element of the crime

Roman Law
- contrectatio
o mere handling of property without it being removed from owner’s control
o interpreted as the actual taking
§ if there was “taking” without literal touch/handling à not theft
• eg. not necessary to touch to gain ctrl
• eg. not capable of being handled
§ Carelse & Kay

§ Dlamini
• accused hid a shirt under his jacket that was taken from self-service
• gripped it with his arm; had no money – brd intention to steal
§ Mapiza
• accused took a box of cigarettes and places it under staircase
• was there sufficient control? – yes, fraudulent dealing with property
- 21st century
o wealth is increasingly abstract & not physical i.e. incorporeal
o transfer of property doesn’t necessarily include actual handling
- contrectatio is thus too restrictive for the modern capitalist economy
- contrectatio in SA
o initially constituted the taking element of theft
§ ito assumption of control – Dlamini
theft can be committed by taking something off the shelf before paying for it
o now – actual removal isn’t necessary for there to be theft
§ Dlamini if decided today
• intent to steal w/out actual deprivation à attempted theft
§ must assume control of the thing by handling/grasping it
§ where things can’t be handled – contrectatio is constructed
• pointing out an ox; instructing computer to transfer money – THEFT
• Nhleko
o N passed ownership of a cow to Q
o N was required to pay a cow to M
o N said Q’s cow must be given to M – convicted of theft
o appeal
§ there was no contrectatio – N wasn’t even there when
cow was taken from Q to be given to M
§ wasn’t allowed – still theft
• Strydom
o accused sold a bull that didn’t belong to him
o contrectatio isn’t always necessary for there to be theft
o in casu – no theft, mere change in mental attitude

German, Dutch, English Law

- appropriation
o taking element = treating the stolen property as though thief has rights relative to it
§ thief behaves like the lawful owner or possessor of the property
and treats the property as the owner would
o essentially: depriving owner of ability to enjoy benefits of ownership
- coincides with underlying social policy of criminalizing theft
o it’s harmful when it prevents the owner from enjoying the property’s benefits

assumption of rights + exclusion of owner’s enjoyment of rights [at the same time] = APPROPRIATION
exercise of control implies that the rightful owner is completely deprived of his enjoyment to the right
Boesak – theft is the unlawful & intentional appropriation of the property of another

eg.
Mekula – appropriation = excl. of owner/possessors rights over property + assumption of ctrl. by thief
- accused tried to steal a bottle of whiskey, took it off the shelf & hid it under his shirt

- security guard caught him before he could take it out

- convicted of attempted theft
o owner was not yet deprived of benefits of ownership
eg.
Nkosi
- farmer received a call that his cattle were in the process of being stolen
- found the vehicle with the cattle stuck in the mud
- convicted of attempted theft
o owner was not yet deprived of benefits of ownership

**sometimes – something between appropriation & contrectatio is required to constitute theft (Tau)
Ø X exercised control over a piece of raw gold,
Ø but would’ve never succeeded in removing it from premises from which it was taken
Ø because there was no deprivation of the rightful owner’s control over the gold – no theft
Makonie – no contrectatio or appropriation
- cow wasn’t actually handled
- owner wasn’t yet deprived of the benefits of ownership of the cow
o if delivery had taken place – would’ve been theft
- attempted theft, regardless of whether AR is contrectatio or appropriation

3. Property
any property that cannot be seized, moved or owned cannot be stolen
property may be absolutely or relatively incapable of being stolen

Absolutely Incapable of being Stolen

a. immovables
- cannot be moved therefore cannot be stolen
- parts of immovables that are movable can be stolen

b. incorporeals
- Roman-Dutch contrectatio means that the thing must be tangible to be taken
- Cheeseborough
o cannot be theft of an idea/design – must turn to IP law for remedies
o only the paper on which the idea is written can be stolen
- Renaud
o board & lodging can’t be stolen
- Milne & Erleigh
o share certificates can be stolen – corporeal
- electricity
o Mintoor
§ electricity is not tangible and therefore cannot be stolen
§ cannot steal energy
o Ndebele
§ energy created by the movement of electrons is what makes electricity
capable of being stolen – the appropriation of a characteristic of a thing
§ critique – doesn’t this make the concept of “capable of being stolen” too wide?
- implications for modern banking transactions
o electronic transfers, credit cards, automatic teller machines
o notes and coins are corporeal
o credits and debits are incorporeal
§ does this mean electronic money can’t be stolen?

§ what if one dishonestly credits their own account?

o AD in Graham
§ money is capable of being stolen even in its incorporeal form

c. res extra commercium

- res communes: things that are common to all – cannot be stolen (Mostert)
o water, sea, streams
o only in their natural environment
§ when in someone’s private possession – capable of being stolen
- res publicae: things the state owns for the benefit of everyone
o seashore

Relatively Incapable of being Stolen

a. res nullius
- unowned, but capable of ownership
- Mafohla
o pleaded guilty to theft of a kudu carcass
o complainant shot it; then accused stole it – complainant “claimed ownership by shot”
o complainant didn’t acquire ownership – wasn’t captured
o conviction should be set aside (was res nullius)
- abandoned property where giving up ownership (by the owner) was intended
o res derelicta - cannot be stolen
- lost property where giving up ownership (by the owner) is not intended
o not res derelicta – can be stolen
- wild animals
o cannot be stolen even if they’re running on private property (Mdaba)
o unless, they have been captured & are under intentional control by the captor
o Game Theft Act – if there’s sufficient enclosure, ownership isn’t lost upon escape

b. res sua
- one cannot steal one’s own property (Janoo)
o convicted of theft of carton of goods from railway
o carton actually belonged to him, but had to produce receipt to get it
§ couldn’t take his own property without the receipt – theft
- two exceptions
o furtum possessionis
§ theft of possession of a thing
§ an owner can devolve the right to possess a thing upon another without
ceasing to be the owner – where the owner takes the property from the
possessor, theft has been committed – the crime lies in the theft of the
possessory interest of the property that the possessor enjoyed (Janoo)
o theft of cash
§ where cash is handed to another for safekeeping – other becomes the owner
– if the money is spent, other cannot be convicted of theft – money is res sua
§ SA courts don’t accept this ^
• draw a distinction between the physical money vs its value

4. Intent
this is the MR element – the accused must intentionally effect an appropriation, intending to deprive the owner permanently
of his property / control of his property, knowing that the taking is unlawful (MR, must extend to every element of the crime)
Boesak

MOTIVE
Roman Law –
taking was meant to be for profit/gain, i.e. differentiating malicious damage to property vs theft
SA Law
motive of unlawful appropriation of property capable of being stolen is irrelevant
- Kinsella
o comparable to Robin Hood
o K was officer in command of a camp
o wanted to provide soldiers with recreational facilities
§ sold scrap material owned by the state
§ ^ knew he wasn’t permitted to do this w/out permission
o K said he lacked intention to steal because he did not intend that the owner is
prejudiced, but rather that it would benefit
o held
§ intention to prejudice isn’t an element of fault
§ elements ito. theft = knowledge of unlawfulness + intention to deprive
• convicted of theft

CLAIM OF RIGHT

if there is a mistaken but bona fide belief that the taking of property was lawful – cannot be theft
a. erroneously thought the property was res nullius
o presumed abandonment (Modise)
b. erroneously thought the property belonged to them
o Riekert; De Ruiter
c. erroneously believed there was consent, or that there would’ve been
o Slabbert
§ was invited to someone’s house, drank some alcohol while host was gone,
thought the host would’ve consented – couldn’t be held liable for theft
d. erroneously believed there was a legal right to take the property, even without owner’s consent
o now – these fall under De Blom
§ knowledge of unlawfulness is part of intention
§ bona fide mistake of law will exclude intention

INTENTION PERMANENTLY TO DEPRIVE

furtum usus – Roman-Dutch Law: constituted a crime; in SA law –
^ use of the thing is stolen

Sibiya
- 2 accused took complainants car and drove it for fun, but ‘always intended to return the car’
- can’t be convicted unless intent to deprive is:
o permanently of the whole benefit of the owner’s rights of ownership
- taking with intention to give it back cannot be considered theft, only unauthorized borrowing
o there is no intention to deprive the owner permanently
- no intention : . no theft
Laforte
- removed Y’s car from garage to take it for a drive, intending to give it back
- crashed the car & abandoned it
- abandonment of property where the initial intention was to return it, is not the same as Sibiya
- abandonment is acting as the owner of the property – there is appropriation
- once it is abandoned there is no longer intention to return it

- MUST BE CONVICTED OF THEFT

**keeping something of someone else’s as security isn’t theft – willing to restore once debt is payed à
no intention permanently to deprive

FUNGIBLE THINGS
can be consumed/destroyed by use: eg. beer, petrol, coal, batteries
distinction between fungible and non-fungibles is not always clear:
eg. car? (Laforte, Sibiya)
the car cannot be ‘consumed’ but the use of it means consuming it to a calculable degree

- someone takes a thing intending to replace it, and uses it (i.e. destroys it)
o taking with intention to deprive permanently has occurred à THEFT
§ the exact thing can never be replaced
- even when it’s replaced – at the time, there was intention to deprive permanently & it was done
o at that moment à elements of crime are met, liability arises at that moment

INTENTION TO APPROPRIATE
- intention should be to effect an appropriation
- Boesak; Riba accept that appropriation is part of the definition of theft
o for an appropriation, there must be an:
§ assumption of rights with a simultaneous
§ deprivation of the owner’s enjoyment of his rights ito. the property
o intent should therefore be extended to both elements of the appropriation

DOLUS EVENTUALIS
- Van Coller
o took microscopes with intent of returning them
o was no intention permanently to deprive
o didn’t foresee the possibility that he might not be able to return them
§ couldn’t be convicted of theft
- de is generally sufficient for intention

Theft by False Pretences (not really a separate crime)

unlawfully, with intent to steal & by means of misrep, appropriates property capable of being stolen
Ø lies somewhere between theft ßàfraud
o appropriation (theft) by misrep (fraud)

Theft of Money
cash is corporeal (capable of being stolen);
credit is incorporeal (not technically capable of being stolen)
passing of ownership of money = mere handing over – once someone else has the money, they own it
theft can consist of a breach of obligation in relation to a sum of money
money’s value = what is capable of being stolen…
Ø Manuel
o accused stole from complainant – ownership of money no longer a Q
§ where money is given for a definitive purpose, and used elsewhere – THEFT
o woman lived in Egypt, met a man who was going to divorce his wife in SA
§ wanted to marry him – gave him money for plane tickets
§ accused spent it on other things – convicted of theft
Ø Scoulides

o ownership of money is not relevant in deciding whether theft has been committed
o money in its incorporeal form is capable of being stolen
§ even without actual handling of the thing

Theft of Trust Money

trust money = money handed over to be used for the benefit/advantage of the person giving the money
Ø the person handing it over trusts the recipient to deal with the money as requested
Ø does a trustee commit theft if the money is used for purposes other than what was instructed?
**where money is received & held in trust – ownership is QUALIFIED : . capable of being stolen

debtor-creditor relationships
- expenditure of money for other purposes: not theft
- commercial relationship
- failure to pay lies in the law of contract
Ø sometimes difficult to distinguish from trust relationships

did Y visualize & expressly/impliedly authorize that (X) should use the money without retaining an
equivalent liquid fund?
- yes = debtor-creditor
- no = trust

Boesak
- where a person is given money for purpose A, but uses it for purpose B & there is an
insufficient nexus between them – the owner is being deprived control over the money
o there is theft

defence to theft of trust money (and trust money only):

- where the trustee has sufficient liquid funds to replace the expended amount
o this eliminates the risk, because it can be readily replaced
- where an attorney receives money on behalf of the client & deposits it into his personal account
and uses it; the fact that there was an overdraft facility equal to the funds means NO THEFT
- liquid fund can be any source of funds
o must be liquid i.e. easily converted into cash
- Visagie – will equivalent liquid funds always be a defence?
o not always –
§ simply an NB factor in determining accused’s knowledge of unlawfulness
- where contract requires trustee to hold it / deliver the specific money (depositaries)
o theft even with available liquid funds
- theft by dishonest accounting – having liquid funds won’t serve as a defence
o omission to account for money, with intent to steal = theft
o deliberately giving too little change = theft (accounts dishonestly) Scoulides
o X overpays Y; Y doesn’t give back money – theft by dishonest accounting Graham
§ received a cheque twice; knew the account was already settled
§ second cheque that was sent in error as used to pay certain debts

Receiving Stolen Property

unlawfully receiving possession of stolen property knowing that it was stolen
encourages theft – something in it for the thieves (therefore receipt of stolen property is a crime)
receipt = obtaining custody & control over property
de is sufficient form of intention