Name Surname Student number

Melania Hall 201913808

LECTURER : Adv. V Booysen

DUE-DATE : 15 June 2020

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QUESTION 1

Discuss S v Chretien 1981 (1) SA 1097 (AD) with principles laid down by AD and give
the Summary of present law [25]

Introduction
In South African criminal law, until 1981 the courts used to apply a set of rules that enabled
them to settle for a conclusion that was somewhere in the middle of the lenient and the
unyielding approaches to intoxication. However the decision taken in Chretien resulted in the
courts being in favour of the lenient approach, whereby intoxication could result in a
complete acquittal. This judgment resulted in criticism, as it ascertained that drunk people
would be treated more leniently than sober people. In response to this matter, the parliament
enacted a provision which is contained in Section 1 of the Criminal Law Amendment Act 1
of 1988. The basis of this discussion will thus be focused on the decision which was made in
the case of S v Chretien1 with regards to the effect of intoxication on criminal liability, an
outline of the principles that were laid down by the Appellate Division and a detailed
summary of the present law on intoxication.

The law before 1981

To begin with, for a vivid picture on the effect of intoxication on criminal liability and the
effect the decision made in the Chretien case had on our law , it is important to briefly look at
what the law on the subject was, prior to 1981. Initially, intoxication, as a general rule was
not a defence, but the general principles of criminal law were applied. These principles
entailed the “specific intent theory”, which stipulated that crimes could be divided into two
groups: those requiring a “specific intent” the likes of murder and assault with intent to do
grievous bodily harm, and those requiring only an “ordinary intent”. This theory was applied
in R v Fowlie2, whereby the court stated that an individual who committed a crime, requiring
special intention, in an intoxicated state may be convicted of a less serious crime than the one
that he had initially been charged with. The court in S v Johnson3 stated that ‘to permit
drunkenness to be used as a defence, would lead to a state of affairs repugnant to the
community. Lastly in R v Bourke4, it was stated that intoxication only serves to mitigate
punishment in sentencing.

1
1981 (1) SA 1097 (AD)
2
1906 TS 505
3
1969 (1) SA 201 (A)
4
1916 TPD303

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S v Chretien Judgement

The legal position as mentioned above was changed by the judgment passed in the Chretien
case. In this case X, who was intoxicated, drove his motor vehicle into a group of people
standing in the street. As a result, one person died and five people were injured. X was
charged with murder in respect of the person who died and attempted murder in respect of the
five persons injured. The court found that owing to his consumption of alcohol, X expected
the people in the street to see his car approaching and move out of the way, and that therefore
he had no intent to drive into them. On the charge of murder he was convicted of culpable
homicide, because the intention to kill had been lacking. X could not be found guilty on any
of the charges of attempted murder owing to the finding that he did not have any intent to
kill. The question arose, however, whether X should not have been found guilty of common
assault on the charges of attempted murder. The trial court acquitted him on these charges.
The state appealed to the Appellate Division on the ground that the trial court had interpreted
the law incorrectly and that it should have found the accused guilty of assault. The Appeal
Court found that the trial court’s decision was correct.

The legal points which were decided by the Appellate Division which were pointed out by
Rumpff C.J5, are firstly that the “specific intent theory” in connection with intoxication is
unacceptable and should be rejected. Intoxication may exclude even an “ordinary intent”.
Secondly, if a person is so drunk that his muscular movements are involuntary, there can be
no question of any act on his part, and although the condition in which he finds himself can
be attributed to intoxication, he cannot, on the strength of the muscular movements, be found
guilty of any crime. Thirdly, a person may be under the influence of liquor to such a degree
that he completely lacks criminal capacity. This will, however, only occur in exceptional
circumstances, namely where the person is no longer aware that what he is doing is wrong or
that his inhibitions have substantially disintegrated. It was emphasised by the chief justice
that, just because of intoxication, the fact that X had acted involuntarily or was not criminally
responsible or that the required intention was lacking, is something that should not be taken
lightly by the court as it would discredit the administration of justice.

The result of this case is that, as far as X’s liability is concerned, intoxication may have one
of the following effects : firstly, it may prevent a person from acting in the legal sense of the
word, secondly if he could in fact perform a voluntary act, the intoxication may exclude his

5
Chretien supra (n2)

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criminal capacity, thirdly if he could perform a voluntary act and also had criminal capacity,
the intoxication might have the result that he lacked the intention required for the crime with
which he is charged and lastly if found guilty of a crime, the extent of a person’s intoxication
may serve as a ground for the mitigation of punishment.

Section 1 of the Act

The realisation that intoxicated persons may too easily escape conviction due to the lenient
approach to intoxication as a defence as laid down in Chretien, led to the legislature passing
the Act. It was argued that the legislature ought to enact a provision to the effect that a person
commits a crime if he voluntarily becomes intoxicated and while intoxicated commits an act
which would have been a crime but for the rules relating to intoxication laid down in
Chretien. In section 1 of the Act6 the legislature created such a crime.

The section reads as follows : 1(1) Any person who consumes or uses any substance which
impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in
accordance with that appreciation, while knowing that such substance has that effect, and
who, while such faculties are thus impaired, commits any act prohibited by law under any
penalty, but is not criminally liable because his or her faculties were impaired as aforesaid,
shall be guilty of an offense and shall be liable on conviction to the penalty which may be
imposed in respect of the commission of the act. In subsection (2) it is further stated that, If in
any prosecution for any offense it is found that the accused is not criminally liable for the
offense charged on account of the fact that his faculties referred to in subsection (1) were
impaired by the consumption or use of any substance, such accused may be found guilty of a
contravention of subsection (1), if the evidence proves the commission of such contravention.

The accused in the Chretien case had criminal capacity but he was acquitted of attempted
murder and common assault because, in his drunken state, he thought the people in the road
would move out of his way and, therefore, there was no reasonable doubt as to whether he
possessed the required intention for these crimes. Under the Act he would still escape liability
since intoxication did not lead to a lack of criminal capacity but rather a lack of mens rea.

The application of the section leads to difficulties. In the sense that, initially the state needs to
establish the accused’s liability beyond a reasonable doubt and then later, in an attempt to
secure a conviction under s 1(1), has to prove the accused’s non-liability beyond a reasonable

6
Section 1 of the Criminal Law Amendment Act 1 of 1988

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doubt. It is difficult for a state to prove beyond a reasonable doubt that, because of incapacity
resulting from intoxication, the accused cannot be held criminally liable for his act. In the
Chretien case the court held that a court should not easily conclude that at the time of the act
the accused lacked criminal capacity. An intoxicated wrongdoer will escape liability if
neither his liability nor his non-liability can be established in the stringent standard of proof.

This provision has been subject to criticism by Paizes 7 as well as other commentators. One of
the grounds of criticism has been the causal requirement that the legislature requires to be
forged between the non-liability of the accused and the impairment of his or her faculties. If,
say, the accused is acquitted on a charge of murder because it is reasonably possible that he
lacked criminal capacity, he cannot, as Ploos van Amstel J pointed out in S v Ramdass8after
taking into account the academic criticism, be convicted of the Statutory offence unless the
court finds it proved beyond a reasonable doubt that he did not have such capacity. In this
regard, wording of the provision leads to a situation where ‘the prosecution will find itself
between ‘two stools’, either that they acquit the accused of the initial charge, or they prove
beyond a reasonable doubt that he lacked criminal capacity. The test of proving beyond all
reasonable doubt the lack of criminal capacity as laid down in the Mbele9 case becomes
difficult to prove. The state also has to prove that the accused would be criminally liable,
were it not for the impairment of his faculties by the consumption or use of the substance
involved10

Summary of present law

As far as the effect of intoxication on criminal liability is concerned, the legal position at
present may be summarized in the following manner.

1. When X intentionally drinks heavily in order to give himself courage to commit his
intended crime. The intoxication offers X no defence.
2. When X becomes intoxicated involuntarily. The intoxication offers X a complete defence.
3. When X is so intoxicated that he is incapable of committing a voluntary act – in other
words, his conduct takes place while he is in a state of automatism resulting from

7
Andrew Paizes ‘Intoxication through the looking-glass’ (1988) 105 SALJ
8
CC43/2015
9
1991 (1) SA 307 (W)
10
De Chermont, Charles Roblou Louis (1998) ‘A Critical discussion of Section 1(1) of the Criminal Law
Amendment Act 1 of 1988’

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 intoxication. In terms of Chretien, X is not guilty of the crime with which he is charged.
He may, however be convinced of contravening section 1 of Act 1 of 1988.
4. When X is so intoxicated that he lacks criminal capacity. Exactly the same as above.
5. When X is so intoxicated that, although he has criminal capacity, he lacks the intention
required for a conviction. In terms of Chretien, X is not guilty of the crime with which he
is charged. Neither can he be convicted of contravening section 1 of Act 1 of 1988.
However, if X is charged with murder, he may, on the ground of negligence, be found
guilty of culpable homicide (which is always a tacit alternative charge to a charge of
murder).
6. On a charge of committing a crime requiring negligence (such as culpable homicide) the
evidence reveals that X was intoxicated while engaging in the conduct Intoxication does
not exclude X’s negligence; on the contrary, it serves as a ground for a finding that X was
negligent.
7. Despite his consumption of liquor, X compiles with all the requirements for liability,
including intention. X is guilty of the crime with which he is charged, but the measure of
intoxication may serve as a ground for the mitigation of punishment. In exceptional cases
the intoxication may, in terms of Section 2 of Act 1 of 1988, serve as a ground for
increasing the punishment11

Conclusion

In a conclusion, in line with the above discussion it can be noted that the decision which was
passed in the Chretien decision created a fear that intoxicated persons might too easily escape
conviction as they were treated leniently by the law. This led to society making demands that
drunken people ought not to be allowed to hide behind their intoxication in order to escape
the clutches of the criminal law. Therefore the response made by parliament, of enacting
section 1(1) of the Criminal Law Amendment Act 1 of 1988, complied with the demands of
the community. However, scholars such as Paizes 12 find the provision being illogical and
inconsistent, as the legislature erred in its wording. It is argued that the Legislature should
amend the Act, reflecting De Chermont’s suggestions for a redraft.

11
Snyman Criminal Law 5th ed (2008)
12
Paizes supra (n7)

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QUESTION 2

Discuss if X’s argument will be acceptable to the court and make reference to relevant
case law [25]

Introduction

In order to be held criminally liable for Y’s death the conduct of either X or Z must comply
with the definitional elements of homicide. Although other requirements for criminal liability
are equally important, a critical analysis of the facts at hand shows that the main issue to be
addressed in order to ascertain who must be held criminally liable for Y’s death is the
requirement of causation. Between X and Z it has to be established who among the two
caused the death of Y and thus must subsequently be held criminally liable for such. The
aforementioned will therefore be the focus of this discussion.

General Requirements For Criminal Liability

For an accused person to be convicted of any crime the State must prove, beyond a
reasonable doubt that the accused has committed voluntary conduct which is unlawful (actus
reus); accompanied by criminal capacity; and fault (mens rea, in the form of intention or
negligence) and that the said conduct must have caused the prohibited offense and complied
with all the definitional elements of the crime.

Who Is Criminally Liable For Y’s Death ?

To establish criminal liability in consequence crimes the element of causation must be

established. Crimes of consequence should be distinguished from crimes of circumstance. 13
Since 1983 when the Appellate Division delivered judgment in Daniels14 laid down certain
13
Snyman
14
1983 3 SA 275 (A).

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broad principles relating to the determining of a causal link. The courts have confirmed that
in order to determine whether certain conduct has caused a certain prohibited condition (e.g.
Y’s death), two requirements must be met: firstly one must determine whether the conduct
was a factual cause of the condition (in other words whether there was a factual causation)
and secondly one must determine whether the conduct was also the legal cause of the
condition (in other words whether there was legal causation). Only if the conduct is both the
factual and the legal cause of the condition can a court accept that there has been a causal link
between the conduct and the condition.

Factual Causation

In order to determine whether an act is a factual cause of the prohibited situation all the
relevant facts and circumstances must be investigated, and one has to decide with the aid of
one’s knowledge and experience whether the prohibited situation flows from X’s conduct. If
one decides that the conduct is indeed a factual cause of the situation, there is a useful way of
checking whether one’s conclusion is correct: one can use the conditio sine qua non formula.
According to this formula or theory one must ask oneself what would have happened if X’s
conduct had not taken place: would the result nevertheless have ensued? If the answer to this
question is “No”, one can be sure that the conduct is a factual cause of the situation or result.
If the answer to this question is “Yes”, one knows that the conduct was not a factual cause of
the situation. Conditio sine qua non literally means “a condition (or antecedent) without
which . . . not”; in other words, an antecedent (act or conduct) without which the prohibited
situation would not have materialised.15

Applying the conditio sine qua non formula to the given facts it can be argued that the
conduct of X in the given scenario qualifies as a factual cause to Y’s death as X’s act cannot
be thought away without the death of Y disappearing.

Legal Causation

It must be established whether X or Z’s conduct is the legal causation for Y’s death. The
courts do not single out a specific theory of legal causation as the only correct one to be
applied in all circumstances. In the leading cases of Daniels and Mokgethi16 the Appellate
Division has stated that in deciding whether a condition which is a factual cause of the
15
Snyman.
16
Daniels supra (n2) ; Mokgethi 1990 1 SA 32 (A) 39; Tembani 2007 1 SACR 355 (SCA)

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prohibited situation should also be regarded as the legal cause of that situation, a court must
be guided by policy considerations. The policy which the courts adopt is to strive towards a
conclusion which would not exceed the limits of what is reasonable, fair and just. In deciding
what is a reasonable and fair conclusion, a court may make use of one or more of the
following specific theories of legal causation which, (prior to Mokgethi) may be discerned:
the novus actus interventiens test (also known as the nova causa test); the individualisation
tests, the foreseeability test, and the test of adequate causation. The individualisation tests
attempt to identify a single cause that can be regarded as the ultimate cause. These tests seek,
and are often identified by this purpose, the ‘immediate cause’, ‘direct cause’, ‘effective
cause’ or ‘decisive cause as was stated in the case of S v Hosiosky.

Applicable Case Law

S v Tembani
In answering the question of whether X’s arguments will be acceptable to the court or not,
one may be inclined to side with the decision that was made by the courts in the case of S v
Tembani17. In the Tembani case, the evidence displayed that X had shot the victim Y twice in
the chest with the intention to kill. Y was admitted to hospital on the night of the shooting
and had been left insufficiently attended to in the ward. She had contracted an infection of the
abdominal lining due to the improper medical treatment she had received. Y died 14 days
later of septicaemia, resulting from the gunshot wound to the chest and to the abdomen.

X appealed against his conviction of murder, the same as X’s case in the given scenario. The
court had no problem in finding that X’s act was the factual cause(conditio sine qua non) of
Y’s death. But the important question before the court was whether negligent medical care
can be regarded as a novus actus interveniens that exempts the original assailant from
liability. According to Burchell18: ‘the novus actus interveniens test is expressed in terms of
an ‘abnormal’, intervening act or event which serves to break the chain of causation. The
normality or abnormality of an act or event is judged according to the standards of general
human experience. Snyman’s definition is identical to Burchell’s save for the inclusion, in
Snyman’s of a reference to whether the event was ‘unsuspected’. According to Snyman, if the
abnormal intervening event was foreseen by the accused, it cannot qualify as a novus actus
interveniens. In finding an answer to that question, the court held that the deliberate
infliction by X of an intrinsically dangerous wound to Y, from which Y was likely to die
17
2007 1 SACR 355 (SCA)
18
Jonathan Burchell Principles of Criminal Law 4th ed (2014)

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without medical intervention, must generally lead to liability by X for the ensuing death of Y.
In the court’s view, it was irrelevant as to whether the wound had been readily treatable, and
whether the medical treatment given later was substandard or negligent. X would still be held
liable for the death of Y. The only exception would be if Y had recovered to such an extent at
the time of the negligent treatment that the original injury no longer posed a danger to her
life.

According to the court, the approach they took was justified on the following two policy
considerations. Firstly, an assailant who deliberately inflicted an intrinsically fatal wound
consciously embraced the risk that death would ensue. The fact that others might fail to
intervene to save the injured person did not diminish the moral culpability of the perpetrator,
while the wound remained fatal. Secondly, in a country where medical resources were not
only sparse but also badly distributed, it was quite wrong to impute legal liability on the
supposition that efficient and reliable medical attention would be accessible to a victim or to
hold that it’s absence should exculpate an assailant from responsibility for the victim’s death.
The court therefore held that, negligent medical treatment did not constitute a novus actus
interveniens that exonerated the assailant from liability while the wound was still intrinsically
fatal. The court thus appeared to endorse the “proximate-cause” criterion, also known as
direct-consequences or individualisation theory, of legal causation. Therefore in this case the
conviction of X for murder was upheld.

S v Counter
Another case to be taken into account, when having to decide whether X’s argument will be
acceptable to the court or not, is the case of S v Counter19. In this case, the appellant X fired
several shots at Y the deceased. One of the bullets struck her on the buttock and unbeknown
to her and, until a later stage, to the doctors who treated her in hospital, it penetrated the anal
canal. This eventually caused virulent septicaemia that led to pneumonia, which caused Y’s
death. The appellant was tried for the murder of his wife and he appealed against this
conviction. On appeal it was contended that the hospital staff were negligent in their
treatment of the deceased and that this negligence should be construed as a novus actus
interveniens.

In passing judgment to this case, the court held that the sequence of events from the time of
the deceased’s admission until her death there had been no intervention by the persons who

19
2003 (1) SACR 143 (SCA)

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had been responsible for her care. The gunshot had left germs from the bullet all along the
wound track and infection had progressed surreptitiously. The deceased developed other
complications, all emanating from the initial injury and all contributing to her eventual death
from pneumonia. It was inconceivable that the appellant should not be held responsible for
the consequences of his actions. They led directly to the death of the deceased by stages
entirely predictable and in accordance with human experience20. In reaching this decision, the
court applied the theory of adequate causation in ruling that the appellant was indeed the
legal cause of Y’s death thereby showing that there was no presence of novus actus
interveniens.

S v Ramosunya
However if ever the facts of the case differ slightly from the ones in the present scenario, the
court may be inclined to apply the novus actus interveniens theory as was done in the case of
S v Ramosunya21. In this case, the appellant was convicted of murder and arson after having
stabbed his mother-in-law four times in the region of her left collarbone. The deceased was
taken to hospital and treated for six days before being discharged. She died at home on the
day after her discharge due to sepsis of the lungs. It was contended on behalf of the appellant
that there was gross negligence on the part of the hospital, as the deceased was discharged
from the hospital apparently in a stable condition to be sent home. Consequently, it was
argued that the gross negligence by the hospital should be construed as a novus actus
interveniens.

In delivering judgement, the court reviewed the case law on causation with regard to finding
a novus actus interveniens in the context of medical treatment. It held that there was a
reasonable possibility that there was no connection between the stab wounds and the death of
the deceased and that the act of a third person could have disturbed the chain of causation.
The lack of evidence of how the deceased had been attended to in hospital did not exclude
gross medical negligence and the possibility that the sepsis in the lungs could have had a
natural cause could also not be excluded. The court therefore ruled that the prosecution could
not prove beyond a reasonable doubt that there was no novus actus interveniens in this
instance the appeal succeeded and the conviction of murder was set aside and substituted with
a conviction for attempted murder.

20
S v Counter supra (n7)

21
2000 (2) SACR 257 (T).

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S v Mokgethi

With regards to the issue of causation the Mokgethi22 case can be taken into consideration. In
this case, X shot a bank teller Y in the back during a robbery, as a result of which Y became a
paraplegic and was confined to a wheelchair. His doctor instructed him to shift his position in
the wheelchair regularly in order to prevent pressure sores from developing on his buttocks.
He failed to follow these instructions, with the result that pressure sores and accompanying
septicaemia developed, causing his death some six months after he had been shot.

The court decided that the wounding of Y had been a conditio sine qua non of his death but
that it could not be regarded as a legal cause of his death. The court found that Y’s own
unreasonable failure had been the immediate cause of his death and that X’s act had been too
remote from the result to lead to criminal liability. X was therefore, found guilty of attempted
murder only.

Conclusion

In a summary when the cases of Tembani and Counter are taken into consideration, it may be
concluded that X in the given scenario is liable for the death of Y rather than it being a result
of the hospital’s negligence. X’s arguments will therefore not be acceptable to the court. It
may be noted that the medical negligence administered to Y may be taken into account as a
contributory factor but not as the legal cause of the death of Y. However when the case of
Ramosunya and Mokgethi is taken into consideration it may be noted that in cases whereby a
nexus between the wound inflicted by X and the legal cause of Y’s death is not established,
the court may conclude that there was a novus actus interveniens and X will be charged for
attempted murder or of a less serious crime instead.

22
Mokgethi supra (n15)

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Bibliography

Legislation

 Criminal Law Amendment Act 1 of 1988

Case Law

 S v Chretien 1981 (1) SA 1097 (A)

 S v Johnson 1969 (1) SA 201 (A)
 S v Mbele 1991 (1) SA 307 (W)
 R v Fowlie 1906 TS 505
 R v Bourke 1916 TPD303
 S v Ramdass CC43/2015
 S v Mokgethi 1990 1 SA 32 (A) 39
 S v Tembani 2007 1 SACR 355 (SCA)
 S v Counter 2003 (1) SACR 143 (SCA
 S v Ramosunya 2000 (2) SACR 257 (T).
 S v Daniels 1983 3 SA 275 (A)

Books
 Jonathan Burchell Principles of Criminal Law 4th ed (2013)
 CR Snyman Criminal Law 6th ed (2015)
 CR Snyman Criminal Law 5th ed (2008)

Journal Articles

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 Andrew Paizes ‘Intoxication through the looking-glass’ (1988) 105 SALJ 781
 De Chermont, Charles Roblou Louis (1998) ‘A Critical discussion of Section 1(1) of the
Criminal Law Amendment Act 1 of 1988’, University of South Africa, Pretoria

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