QUESTION 1

H and W have been married for two years. The marriage has been turbulent from the start. H
has a short temper and the couple have had many fierce arguments some of which have ended
in H physically striking W with an open hand or, on occasions, with his fist in her face. H is
possessive about W and constantly checks her cell phone to determine who she has contacted.

On the night in question, after returning from work, H starts drinking beer as he waits for W
to come home from her work as secretary to a small building company. When W unlocks the
front door and enters the living area, H, who has by now consumed six beers, calls out to her
from the sofa where he is lying:

“Where the hell have you been?”

W replies that she’s been at the staff party.
“So you’ve been with your boss, have you?
“Of course, I have, stupid. How could we have a staff party without him?” she responds. H
stumbles from the sofa and pushes W up against the kitchen counter.
“I’ll teach you a lesson,” he shouts, unzipping his trousers.
W leans back, grabs a kitchen knife lying on the counter and plunges the knife into H’s
stomach.
H falls on his back with the knife stuck in his stomach, gasping “Help me!”

W uses her cell phone and contacts the emergency services, telling them where she lives and
that her husband has been stabbed in the stomach. The emergency services indicate that they
will be there immediately.

W ends the call, puts her cell phone in her bag. In the meantime H pulls out the knife from his
chest as the pain is too much. He bleeds to death within a matter of minutes. When the
emergency services arrive W tells them that H removed the knife himself.

Consider the criminal liability of W on a charge of murdering H.

[30 marks]

- Intro: Lay out onus + elements of liability, those in dispute and not. Define crime in
question
- **Set out legal issues [what is in dispute] – whether Albert’s conduct is unlawful and
whether there are any defences; whether there is mens rea; and/or defence of putative
private defence

Issues:

Private Defence – engelbrecht

Putative Private Defence (De Blom; De Oliviera; Pistorius)

The crime of murder is the intentional and unlawful killing of another person. For criminal
liability to ensue, the state must prove beyond a reasonable doubt that W committed unlawful
conduct with the requisite mens rea and had criminal capacity.

The possible elements in dispute in this case are unlawfulness due to the battered woman
syndrome, and mens rea due to the possibility of putative private defence.

Battered Woman Syndrome

The defence of private defence is available to negate the unlawfulness of an act where there
has been an attack on the accused, against a protected interest, that was unlawful. There must
be evidence that the defence was (1) necessary to avert the attack; (2) a reasonable response
to the attack; and (3) directed against the attacker. It is accepted that the attack against the
accused must have commenced or have been imminent.

Could argue private defence as seemed he was about to rape her OR:

However, some criminal cases have recognised that the physical and emotional abuse
suffered by partners in abusive relationships have often resulted in victims killing their
abusive partners. This is referred to as ‘battered woman syndrome’. The issue this poses for
private defence is that the response of the abused partner is usually not as a direct result of a
particular attack, but the delayed response of continued abuse.

Evidence of the pattern of behaviour described as ‘abused intimate partners’ was accepted in
mitigation of sentence in S v Ferreira. The physical and emotional abuse suffered by the
accused at the hands of her partner constituted a compelling reason to impose a lighter
sentence.

Although the majority in S v Engelbrecht found that the accused’s conduct had not reached
the standard of a reasonable person, Satchwell J held that the accused had been subjected to a
pattern of abuse such that further domestic violence was inevitable or imminent. Therefore,
the accused’s conduct was found to have been reasonably necessary or proportionate given
the circumstances. Thus, there is a possibility of private defence where there is an inevitable
(but not imminent) attack. But this is a High Court judgment, not yet approved by the SCA.
Could at least ask for mitigation of sentence.

Non-Pathological incapacity (Eadie)

There is the possibility that Eadie closes another approach by extending to emotional stress
(non-pathological incapacity), and that emotional stress will not be a defence excluding
capacity unless it is to the extent that it constitutes automatism. This is, according to
Burchell, a likely result of Eadie. Thus, it seems W could only be acquitted based on non-
path incapacity if she acted in a state of automatism (aka controlled by W’s conscious will).

Putative private defence

It is possible that the person was acting in response to a supposed attack, in the genuine belief
that she was about to be attacked (De Oliveria). If the court doesn’t believe that she was bona
fide, then the question is whether her belief was reasonable – in which case culpable
homicide would be a competent verdict.
 This defence requires that:

 There was a genuinely held belief that a ground excluding unlawfulness existed or
was available.
 It is a genuine and bona fide belief that unlawfulness will be excluded.

De Oliveria & Pistorius: the defence of putative private defence implies rational but
mistaken thought.

Question 2

Manuel is a member of a gang engaged in illegally importing drugs into South Africa. The
police have made a break-through in their investigations into this drug importing network.

Manuel is ordered by Rodriquez, the self-proclaimed leader of the drug gang, to plant and
detonate a pipe bomb outside a pub frequented by police officers. Manuel protests that he is
not prepared to kill policemen in cold blood and refuses to carry out the orders of Rodriquez.
Rodriquez then threatens Manuel that Manuel’s mother will be killed unless he
(Manuel) carries out Rodriquez’s instructions and plants and detonates the bomb
outside the designated pub.

According to Rodriquez’s instructions, Manuel will be driven to the place where he will plant
the bomb by Manuel’s brother, Reg, who has no connection with the gang led by Rodriquez,
but who is also threatened that if he does not carry out the instructions and drive his brother
to the scene of the bombing their mother will be killed.

Both Manuel and his brother, Reg, knowing that Rodriquez is a powerful man and fearing for
their mother’s life, participate in the plan. Reg drives Manuel to the pub and Manuel plants
and detonates the bomb according to the plan and three policemen and two civilian women
are killed in the blast.

Both Manuel and Reg are apprehended and charged with the murder of the three policemen
and two women.

1. In terms of current case law in South Africa, could Manuel and Reg successfully raise
the defence of compulsion to this charge/indictment. Give reasons and authority for
your conclusions. (30 marks)

Murder is the unlawful and intentional killing of another person. For criminal liability to
ensue, the state must prove beyond a reasonable doubt that W committed unlawful conduct
with the requisite mens rea and had criminal capacity.

The element in issue in this case is unlawfulness. This is because there is a possibility of the
defence of compulsion being successful. In other words, can Manuel and Reg successfully
raise compulsion as a defence to the charge of murder?

Compulsion as a defence is a form of necessity where a person is compelled by human threats

to break the law. It is a situation of necessity that requires the accused to break the law to
avoid harm.
In order to raise the defence of necessity there are a number of requirements that must be
met:
a. A legal interest of the accused must have been endangered.
b. The threat was imminent or commenced.
c. It was not caused by the accused’s fault
d. It was necessary for the accused to avert the danger.
e. The means used by the person must have been reasonable in the circumstances.

In English law, necessity and/or compulsion is not regarded as a defence to murder/attempted

murder. In South African law however, S v Goliath (an appellate division case) is the leading
case.
S V GOLIATH ACCEPTS THAT COMPULSION CAN BE A COMPLETE
DEFENCE TO MURDER. (THIS INCLUDES BEING AN ACCOMPLICE)
Can the special defence of compulsion can ever in law constitute a complete defence to a
charge of murder so as to entitle an accused to an acquittal? YES.
The test outlined in Goliath is:
WAS THE COMPULSION SO STRONG THAT REASONABLE PERSON IN THE
PARTICULAR CIRCUMSTANCES COULD HAV BEEN EXPECTED TO RESIST IT?

Goliath
The test was one of a reasonable person.
 The standard of reasonableness is that of an ordinary, average person in the
particular circumstances.
 For the ordinary person in general, their life is more valuable than someone else’s.
 Should the criminal state that compulsion could never be a defence to a charge of
murder, it would demand that a person who killed another under duress, whatever
the circumstances, would have to comply with a higher standard than that
demanded by an average person.

However, the relevance of joining a criminal gang must be examined with regard to the
commission of a crime. The leading case in this regard is S v Bradbury

S v Bradbury
Bradbury was a member of a criminal gang in England. He came to South Africa and was
threatened by the gang to kill a businessman or else his family would be subjected to physical
violence. Bradbury resisted the attempts to force him to commit the crime, but eventually the
gang finally threatened to kill his family. As a result he acquiesced to drive the get away car
in the commission of the crime.
Bradbury raised the defence compulsion.
The court found the following exception to the rule that necessity/compulsion could
constitute a defence for a crime.
EXCEPTION:
A person who voluntarily joins a criminal gang with the knowledge of its violent activities
cannot successfully raise the defence of compulsion when he is compelled by another
member to commit a crime.
An accused, through his own fault, has brought about the circumstances that require him
to commit a crime.
To restate this exception again:
“As a general proposition, a man who voluntarily and deliberately becomes a member of a
criminal gang with the knowledge of its disciplinary code of vengeance cannot rely on
compulsion as a defence or fear as an extenuation. However, each case must be judged on its
facts.”
In this regard, Bradbury was described as a pan in the gang and that he had been gradually
coerced into joining the gang. The evidence of the police supported his contention that he
ultimately acquiesced to the crime through fear of reprisals to himself or his family.
Furthermore, Bradbury resisted his instructions for 5 weeks. He was resisting murder.
Therefore, all these factors reduce his moral blameworthiness.

A defence of PUTATIVE COMPULSION could also be raised.

This defence requires that:
 There was a genuinely held belief that a ground excluding unlawfulness existed or
was available.
 It is a genuine and bona fide belief that unlawfulness will be excluded.

APPLICATION TO THE FACTS

Manuel has driven the get-away car in the commission of the crime where 5 people have been
killed. As an accomplice in the commission of the crime he could be charged with murder.
It is necessary here to apply the legal principles as stated above to this specific fact set.

At the outset, it is common cause that Manuel acted intentionally, unlawfully and with
capacity. However, if he can successfully raise the defence of compulsion he could escape
liability for the crime.
The test in Goliath requires that for a successful defence of compulsion to be raised it must
be assessed whether the compulsion was so strong that the reasonable person in the particular
circumstances could have been expected to resist it.
It this case it is submitted that the compulsion was so strong that a reasonable person in
Manuel’s position could not be expected to resist it. HOWEVER, the fact that Manuel is a
member of a criminal drug gang, he cannot raise this defence.
An exception is created by the case of S v Bradbury. If a person voluntarily joins a criminal
gang with the knowledge of its violent activities, he cannot raise the defence of compulsion.
Manuel is a member of a drug gang. It is likely that the gang is linked to violent crime. When
Manuel joined the gang he must have at least foreseen (dolus eventualis) of the potential for
violence. He would not be able to raise the defence of compulsion.
In any event, the threat to Manuel does not seem imminent. The threat relates to future
conduct (‘I will kill’). Compulsion requires an imminent threat.

PUTATIVE COMPULSION
What if Manuel generally believed he was being compelled?
His involvement in an organized drug gang was not bona fide or reasonable.
What about Reg?
Reg was not a member of the gang. He does however know that Rodriguez is a dangerous
and powerful man and fears for his mother’s safety. Reg could raise the defence of
compulsion.
Question 3

Adam and Brett are crew members of a fishing vessel The Piranha. Adam captains the vessel
on its fishing expeditions from Hout Bay and Brett works on board in the engine- room
during these fishing trips. For six months the crew of The Piranha have been part of a
syndicate of fishing vessels that have been catching large quantities of the rare white
Steenbras—a fish protected by environmental legislation which imposes heavy criminal
penalties on those convicted of catching this particular species. Adam, Brett and the rest of
the crew are aware of the fact that the catching of white Steenbras is prohibited by law.

The Piranha has been at sea for a few days and on the day in question her crew net a large
haul of white Steenbras. While they are loading the fish into the hold some slip back into the
ocean and, as is often the case on these trips, a few large sharks following the vessel enjoy
easy pickings. The day in question is no exception and at least one large Great White shark is
seen trailing the fishing vessel.

After storing the Steenbras in the hold, Adam, Brett and the other four deck hands are making
their way back to Hout Bay when they are intercepted by a coast guard vessel manned by
members of the newly formed ‘blue scorpions’ unit which specialises in marine conservation
contraventions. The captain of the coastguard vessel, who has received a tip off that The
Piranha has been fishing illegally, calls upon The Piranha to slow down and permit the blue
scorpions to board. His intention is to arrest the captain and crew for illegally catching white
Steenbras.

The Piranha does slow down and two blue scorpion officers prepare to climb from the
coastguard vessel onto the deck of The Piranha via a rope ladder that has been lowered by the
deckhands of The Piranha. Adam waits until the officers have started their precarious ascent
and then rushes into the engine-room, points a gun at Brett and orders him to give immediate
full throttle to the powerful engines of The Piranha. Brett has heard the

coastguard announcements and is terrified by the sight of Adam wielding a gun. He

immediately complies with the order of Adam and The Piranha lurches forward under full
throttle. The two coastguard officers, who are about to clamber onto the deck of The Piranha
lose their balance as a result of the surge in the vessel’s power and are thrown from the ladder
into the sea below. One of the officers is retrieved and pulled back to safety by the crew of
the coastguard vessel but the other, who has cut his arm in the fall and is bleeding, is eaten by
the Great White shark before the captain of the coastguard vessel and his remaining crew can
rescue him.

The captain of the coastguard vessel shouts to the crew of The Piranha that he is arresting
them and fires a warning shot above the escaping boat. The Piranha continues to make its
getaway and the captain of the coastguard vessel fires another shot at the figures standing on
deck and the bullet strikes and kills a deckhand on The Piranha. Adam, who is on deck still
wielding a gun, orders the rest of the crew to throw the Steenbras overboard to the sharks and
proceed on their journey.

When The Piranha returns to Hout Bay, Adam and Brett are arrested and charged with the
murder/culpable homicide of the blue scorpion officer who was eaten by the shark when
attempting to board The Piranha.
 1. (i) Consider the criminal liability of Adam and Brett for the death of this blue
scorpion officer and consider whether Brett could successfully raise any defence on
such a charge.
2. (ii) Also consider whether the coastguard captain could successfully raise a defence
to the killing of the deckhand struck by his second bullet.

[20 MARKS]

Question 3

A middle-aged man (Stoffel) is charged with the murder of his wife (Marie) by shooting her
with his .38 special calibre revolver.

Stoffel and Marie have been married for 12 years. They have one child aged 9. Two years
ago Stoffel underwent a medical operation to his spine which has left him paralysed from
the waist downwards. Even before the operation, Stoffel had confronted Marie about her
extra-marital relationships with other men, but after the spine operation she has openly
entertained other men at home in front of him. She has humiliated her husband in front of
these men. Stoffel has started drinking heavily and has, on one occasion, taken an overdose of
sleeping pills. If it had not been for the intervention of their 9-year old calling a neighbour,
Stoffel might have died from this overdose, combined with heavy alcohol consumption. On
the day before the night in question, Marie had an argument with Stoffel and told him
that he ‘might as well take his revolver and kill himself as he is no use to any woman’.
When he poured himself a stiff whisky, she taunted him, saying ‘If you haven’t the guts to do
it, I will ask Willem [her current lover and a big game hunter] to do so.’ On two occasions in
the past Willem, after having sex with Marie, has assaulted Stoffel when Stoffel has
confronted them about their relationship. On one of these recent occasions, Stoffel has had a
tooth dislodged as a result of a punch from Willem.

On the following night, while Marie is lying down on the bed, Stoffel enters the room with
his .38 revolver in his hand and pleads with her to leave Willem, who is coming to visit her
later that night. When Stoffel drops to his knees and suggests that they can get back together
as a family, Marie only laughs at him. When he points the revolver at his temple and says he
will kill himself if she doesn’t leave Willem she replies ‘Go on do it, you wimp!’

According to Stoffel what happened then was that he acted ‘like a machine’ and his last
memory was ‘seeing a flash from the gun and hearing a shot’. He claims to be unable to
recall firing any further shots. Ballistics experts testify that two bullets from the revolver
struck Marie, one in her leg and one in her chest. The bullet in her chest caused instant death.
A third bullet is found lodged in the roof above Marie’s body.

1. Advise Stoffel on the possibility of conviction and sentence on the murder charge
against him

The crime of murder is the intentional and unlawful killing of another person. For criminal
liability to ensue, the state must prove beyond a reasonable doubt that W committed unlawful
conduct with the requisite mens rea and had criminal capacity.
In this case, the elements in issue are capacity and conduct. This is because there is a
possibility of the defence of provocation and the lack of voluntary conduct.

Emotional Stress/ provocation defence: that is defence excluding capacity. Whether it I

successful depends to a large extent on the effect of the Eadie case. Does it extend to
Emotional Stress? If so, need to prove you were acting involuntarily at the time of
commission of the crim in order to succeed. I don’t think private defence is available on the
above facts

S v Eadie: accused couldn’t successfully raise the defence of non-pathological incapacity.

- Court warned against readily accepting the ipse dixit of the accused
regarding provocation or emotional stress, and are entitled to draw
legitimate inferences from objective circumstances
- Provocation only a defence when it leads to involuntary conduct
- Accused doesn’t bear burden of persuading the court that they didn’t
have capacity
- Unsure whether this limitation of defence of provocation to cases of
automatism applies also to instances of intoxication and domestic
abuse
Private defence does not seem likely on the facts Engelbrecht extension of private defence?
imminent attack? That case involved actual violence and she had tried to approach the courts

QUESTION FOUR
Bruce is an accountant. He works for an investment company LQNH. Bruce
specialises in investment plans for the elderly. He combines monies held in trust for
his clients with his own personal money and gambles it all away at the Casino. When
his is revealed he is charged with fraud and theft.
Can LQNH also be charged? Give a full explanation for your answer.

CORPORATE CRIMINAL LIABILITY

S 332(1) of Criminal Procedure Act: artificial person cannot be guilty of a crime requiring
fault. Where a corporation is charged with such a crime, the fault of the director/servant who
committed the crime will be imputed to the corporation.
- Bennet & Cp (pty) Ltd: negligence of an employee was imputed to the
company resulting in a conviction of the latter for culpable homicide

Extends to crimes based on intention, negligence and strict liability. But where a statute
specifically confines liability to natural persons, corporate liability cannot result.
 Corporate body is liable where the director or servant acted beyond his powers but
while furthering or endeavouring to further the interests of the corporation. Liability
in the section extends beyond the normal limits of vicarious responsibility where the
principal is liable only if the agent or employee acted within their scope of
employment
Question 4

Albert awakes in the middle of the night and hears footsteps in the garden outside his
bedroom window. His house has recently been broken into and his wife attacked. Suspecting
that this might happen again, he has built a six foot wall around his property and kept the gate
locked.

After hearing the footsteps he picks up a loaded gun that lies next to his bed and fires a shot
through the metal burglar bars of the open window at a figure in the dark outside his
bedroom. The intruder is struck in the thigh by the bullet discharged from Albert's gun. It
transpires that the person struck by the bullet is Albert's neighbour, who had tried
unsuccessfully to reach Albert on the telephone in order to help him (the neighbour) get his
sick son to hospital. The neighbour eventually climbed over Albert's wall to seek help as he
knew Albert was at home.

Albert rushes his neighbour, who has lost a lot of blood from the bullet wound, and the
neighbour's son, to a nearby clinic. Although Albert tries to stop the bleeding his neighbour
dies from loss of blood before he reaches the hospital.

Albert is charged with the murder/culpable homicide of his neighbour. Consider the criminal
liability of Albert on this charge.

ISSUES:
Could A be convicted of murder (define) or culpable homicide (define)?
Elements of private defence of person/property as defence excluding unlawfulness:
Was there an imminent attack?
Legal interest endangered: person or property or both? Justification for defence of property—
Van Wyk (Storekeeper)
Were reasonable means used to avert any attack? Warning shot? Resort to police?
Putative private defence: De Oliveira (subjectively believes life to be in danger but
objectively it is not) The focus is on the genuineness and reasonableness of A’s belief (ie fault
is in issue rather than unlawfulness)

Private defence:
Elements of attack—(i) commenced or imminent attack (Engelbrecht: inevitable, but applies
to domestic abuse and not yet confirmed by SCA); (ii) upon a legal interest (Life, physical
integrity, property); (iii) unlawful attack.
Elements of defence—(i) necessary to avert attack; (ii) reasonable response to attack
(warning shot if possible: Stephen); (iii) directed against attacker.
Objective test ie defence excluding unlawfulness: Reasonableness in the circs. No onus on
accused who must simply raise the defence!
Killing in defence of property alone (mention the elements): AD in Van Wyk—killing in
defence of property may be justified in principle (All five judges of appeal agreed on this
matter but divide 3-2 on whether Van Wyk acted reasonably) NB reasoning of Steyn CJ that
proportionality not required and s 49 (which, at that time, permitted killing of a fleeing
suspect who had committed crime against property…not the case with new s 49).
NB special circs of Van Wyk (compare the Storekeeper DVD)
Constitutional challenge to Van Wyk? Right to life above right to property. Emphasis on
proportionality. Change to s 49 (need for threat to physical integrity). Doubtful whether Van
Wyk would survive a Constitutional challenge.

Putative private defence:

De Oliveira – there is a distinction between pd as a defence excluding unlawfulness and
putative pd as defence excluding fault.
Was mistaken belief that A’s property and/or life was in danger genuine? If it was, then this
could exclude knowledge of unlawfulness (ie intention). Why was accused in De Oliveira
convicted of murder and accused in Dougherty convicted of culp? Accused in De Oliveira
did not testify as to his belief and court drew legitimate inferences that he did know of the
unlawfulness of his conduct. In Dougherty court held that prosecution had not proved beyond
reasonable doubt that accused knew his conduct was unlawful (therefore acquitted of murder)
but that his mistaken belief was not reasonable (therefore convicted of culp). He should have
fired a shot to incapacitate before shooting to kill.
If ruling in Van Wyk (that killing in defence of property alone is permissible in extreme circs)
does not withstand a Constitutional challenge then A could still raise ignorance or mistake of
law in terms of De Blom in that he did not know that there had been a change in the law but
his belief would have to be reasonable to exclude culpa.

APPLICATION
Private Defence of person: There is no immediate/imminent attack on A’s physical
integrity. B is a homeless man seeking shelter in a garden shed. (‘Inevitable’ attack
(Engelbrecht) confined to gradual build-up of domestic violence and this extension of pd not
yet accepted by SCA).
Private defence of property: Is there a commenced or imminent attack on property.
Trespass is a crime against property and trespass is taking place. Did B take reasonable
means to avert the trespass? Did he fire a warning shot (Stephen)? He did fire two shots, but
both were in the direction of the shed. Not clear whether first shot was a warning shot, but
unlikely if it was fired direction of shed from which noise emanated. Could A have called the
police? He had spoken to police, but they were under-staffed and so not able to patrol area.
But, he could have telephoned them that night to come and investigate. Was A’s predicament
as extreme as Van Wyk’s?
In any event, the Constitutional future of Van Wyk (which regards killing in defence of
property in exceptional circs as a potential defence) is in doubt—right to life is central in
Constitution and s 49 killing now only applies to threat of physical violence not property.
Unlikely on facts and the law that A’s killing of B would be seen as amounting to a situation
of legitimate private defence.
Putative private defence: There is some evidence to show that A genuinely believed his
physical integrity (even life) and property were in danger (NB evidence of previous break-ins
and drive-by killing in neighbourhood). A’s genuinely held belief could serve to exclude
knowledge of unlawfulness for murder, leading to an acquittal on this charge (NB he should
be counselled to give evidence in court to support his genuinely held belief—compare De
Oliveira).
Was his belief that his life and property were in danger reasonably held? Here again issues of
warning shot/resort to police that night might indicate that he acted too hastily and his belief
might be held to be unreasonably held and so A would be negligent regarding the death of B.
In this case A could be convicted of culpable homicide.