Criminal Law:

Elements of the Crime: CONDUCT

INTRODUCTION:
● Evil thoughts, desires or intentions are not enough to be punishable by criminal law - there
must be some physical manifestation for it to be criminal in nature.

Definition of unlawful conduct:

● The conduct must be that of a human​ being​ that was ​voluntary. ​It may be an act of
commission or omission​. There must be a ​causal connection​ between the initial voluntary
conduct and the unlawful consequences.
● The prosecution has the burden of proof beyond reasonable doubt
○ The accused just raises a defence
○ In a prima facia case and the accused remains silent then they take the risk that a
court might find the prosecution has established its case.

VOLUNTARY HUMAN CONDUCT:

HUMAN CONDUCT:
● Only human beings are subject to criminal sanction
● Unlawful acts committed though animals or inanimate objects are punishable
● Conduct doesn’t include juristic persons

VOLUNTARY ELEMENTS:

1. The Voluntariness element:

● The doctrine of free will - holds that all humans are born with the ability to choose freely
between different courses of action.
○ Therefore an individual can be justifiably held responsible for the consequences of
their actions
○ Expressed by a requirement that conduct must be voluntary
● Voluntary conduct is conduct controlled by the will - controlled by the accused’s conscious
and self-control
● When persons free will have been deprived and actions are “involuntary” then can’t be held
criminally liable
○ Involuntary conduct = automatism
○ Pathological automatism - act involuntary due to mental illness
● Conduct is involuntary if it takes the form of automatism which includes sleep, vis absolute
(absolute force), reflex actions, intoxication, epileptic fit

Notes adapted from Burchell pages 69 - 91 and class notes

NON -PATHOLOGICAL AUTOMATISM:
● Onus is on the ​State​ to prove all elements of liability b
​ eyond reasonable doubt
● ​A “not guilty” verdict is an unqualified acquittal – not punished, no legal consequences

● Severe probation
S v Arnold 1985 (3) SA 256
- Husband kills stripper ex-wife
- ​Had previous children including his deaf son
- ​Succeeded – did not perform act consciously
- Swayed by his love + honesty + background
- ​Court said because not a single statement was untrue by the accused, did not want to kill her
- Court came to the decision that he didn’t act voluntarily
- Court couldn’t find beyond a reasonable doubt that they couldn’t find his actions.
- On behalf of the defence, there was psychotic evidence - the state didn’t have
counter-evidence

● Severe intoxication
S v Chretien 1981 (1) SA
- Someone got behind the wheel drunk
- People infant of him were also moving
- He ran into them and killed a few
- Not a case of consciousness but Court was discussing degrees of intoxication
- The most serious degree of intoxication is you are so intoxicated that you don’t act
consciously anymore
- A person is almost passed out they are so drunk - dead drunk
- Was not this serious in this case

● Instinctive conduct (involuntary)

S V Smit 1963
- Driving people on the back of his Buckie
- A person at the back tapped really hard onto the bakkie glass and it broke- driver got a big
shock
- drove involuntary into the gravel and overturned the bakkie
- One of the passengers died
- Charged with negligent driving
- Smit argued it was reflex action and testified that broke, therefore, his body reflect was to
move
- The court said if he had time to think about the broken glass he had time to think of moving
the car

Notes adapted from Burchell pages 69 - 91 and class notes

S v Erwin
- Driving car and bee flew in and stang his check
- In a reaction, he moved his head and broke his glasses
- When moving to protect his eyes from the broken glass he took his hands off the wheel
- At this moment he was trying to overtake and caused an accident
- Charged for negligent driving
- Argued it was involuntary
- Court argued that his split-second thought processes was enough to argue that he had time
to do something else

● Unconsciousness
S v Van Rensburg 1987 (3):
- Feel asleep behind the wheel (after a blood test at the doctor, low blood sugar, couldn’t eat
before)
- Crashed into someone else - doesn’t remember anything
- Charged with negligent driving
- Because he was not warned of the possible consequences from the test his case succeeded
based on the medical evidence

PATHOLOGICAL AUTOMATISM:
● ​Accused must prove involuntary conduct due to mental illness on a balance of probabilities
○ That they suffer from this mental illness
○ That their mental illness leads to this involuntary conduct
○ An expert is needed to provide expert evidence to support a case
● If accused is found not guilty by reason of insanity he will be detained in a mental institute –
“State President’s patient”

2. Liability based on prior voluntary conduct:

● It has been accepted in SA courts that who acts voluntary and deliberately gets drunk in
order to commit a crime is guilty even though at the time he/she commits the prohibited acts
he/she is acting involuntary (​Actio libera in causa principle)
● The essence is that criminal liability can arise from prior voluntary conduct which is causally
linked to the unlawful consequences even though at the time the accused was actin
involuntary
● Extension to other cases: not merely intent and intoxication
○ E.g. ​S v Grobler 1974
- Job was to operate the lift at a mine
- This trip took about 2:30 to 3 minutes
- ​He fell asleep on the job and he did not stop it from going up
- 16 out of the 18 workers in the lift died.
● The backup system did not also work
○ ​E.g. 2: epileptic deliberately skips medication – commits a crime while in an epileptic
state

Notes adapted from Burchell pages 69 - 91 and class notes

 AN ACT OF COMMISSION OR OMISSION

ACT (POSITIVE CONDUCT):

● Every crime is defined in terms of human conduct (an act). To constitute a punishable crime
the manifestation of evil thoughts must take the form of conduct that matched the description
in the definition
● It includes movement of the human body as well as a consequence because of this
movement.

OMISSION (FAILURE TO ACT):

The general rule:

● Punishable conduct usually consists of doing something (positive act/act of commission), not
in NOT doing something (an omission)
● The central question whenever it’s argued that liability should be based on omission is
whether there was a legal duty to act in the circumstances - unlawfulness rather than a fault.
● In SA the law prohibits one from causing harm to another but doesn’t require to benefit
another.
○ there is generally no criminal liability for an omission
■ Why? Floodgates of liability (e.g. someone drowns – are all witnesses liable?)
○ Important distinction between prohibitive (“don’t do that”) and imperative norms (“do
that”)

The exceptions to the general rule:

● Action to prevent others from suffering harm must accommodate exceptional circumstances
of no liability where the danger in acting is equal to the danger of not acting.
● In SA the category of legal duties is based on the legal convictions of the community.

*Important to note that none of the below cases is criminal cases*

1. Prior conduct
● Where a person through his/her conduct created a potentially dangerous situation then
he/she is under a legal duty to prevent the danger from materialising.

Case: R v Miller (1983)

- Miller was a homeless person, he would break into different houses and crash for a few
nights then move on
- One night after drinking he lights a cigarette, fell asleep and the cigarette ignited the mattress
- Didn’t attempt to put the fire out, just moved to another room
- Having by his own act started a fire, where he came aware of the action and therefore had a
legal duty to stop the action.

Notes adapted from Burchell pages 69 - 91 and class notes

 2. Control of potentially dangerous things/animals:
● When a person has assumed control of a potentially dangerous thing or animal which may
cause harm unless precautions are taken.

Case: S v Fernandez 1968

- A baboon was kept by a shop owned by Fernandez.
- Fernandez saw the baboon out of the cage and got him into the cage.
- He saw the baboon cage had a whole and started to fix it but didn’t fix that exact whole which
the baboon escaped
- Later the baboon escaped out of the same whole
- A mother with a little baby, she walked passed a shop and a baboon grabbed the baby out of
the pram and bit the baby
- When the shop owner threatens to shoot the baboon, the baboon dropped the baby and baby
died
- Charged with negligent killing (fine of R75)
- It was Fernandez duty to ensure the baboon did not escape
- Fernandez was aware that many people would come to his shop and a reasonable person
would know that the baboon could be dangerous to these people.

3. Special or protective relationships:

● A person who occupies a special or protective relationship towards another may be under a
legal duty to take steps to protect that person from harm
● Eg policemen are under a legal duty to prevent a person from being assaulted by another
person

Case: State v B
- B mother of child and had a new boyfriend
- Boyfriend did not like the child at all (nothing wrong the baby physically/mentally)
- One day child rushed to hospital and child died shortly afterwards
- Medical evidence showed that this child had been abused for a long time
- Boyfriend guilty for the murder
- What about the mother? She was aware of what was going on
- She said to one of her friends that she told him so many times not to hit the child, had others
from friends to go stay with them. She had other options but choose to stay
- Torturing of child went on for many months
- Court said there was no evidence that she knew he would kill the child, only knew he was
abusing her
- She was not liable for murder but was liable for assault, her failure to protect the child lead to
her being accused.
- As her mother, she had a protective relationship

Notes adapted from Burchell pages 69 - 91 and class notes

Minister Van Police v Ewels
- Minister is appealing that’s why his name is first
- Not a criminal law case
- Ewels had a conflict with off duty police - this policeman was convicted of assault
- This assault happened at the police station, all other policemen did nothing to stop it
- Sued minister of police in order to get more money
- Groundbreaking case, never before could no actions of conduct be sued
- Court said it was a legal duty to act as police have a protective relationship with society. The
job of the police to protect society
- The legal convictions of a community expect the police to act
- Erwels succeeded with the case, an appeal was granted

Minister of Law and Order v Kadir

- Kadir was driving peacefully, someone driving ahead of him had a big puddle of clothes at
the back of the vehicles
- Clothes fell off the back and caused Kadir to crash
- Police turned up and a bystander told the police the situation
- Person who lots the clothes came back to collect and was not was
- Because Kadir didn’t know who the owner of the bundle of clothes was and that he was
seriously injured he could not take down the details and therefore couldn’t claim with the road
accident fund
- Argument was Police had a legal duty to take details of offender/negligent driver
- Court said it’s not a legal duty for police to collect details to be used in the delictual claim -
the details are not relevant to criminal law.

Minister of Safety and Security v Carmicheie

- Extremely serious assault – let him go on warning – even though very dangerous, attempted
rape, murder – she said they had responsibility to keep people like her safe – police should
have told court about his previous actions, given magistrate the information – entitled to claim
damages
- This was a constitutional case and baes on the fact that ploce have a duty to protect the
public in general and women and children in particular, from violent crime

Minister of Safety and Security v Hamilton

- Two people arguing over a parking spot. Women and a 22-year-old student
- One person got so irritated that she pulled out a gun and shot her
- He was paralysed by the shot
- Women were extremely mentally unstable
- The gun she used she obtained legally from the stellenbosch university
- The police did not do a background check and she was clearly not a fit to have a gun
- Hamilton sued the minister because police were not doing their job
- Court agreed and said that police were negligence and by not doing background check they
did not do their legal duty.

Notes adapted from Burchell pages 69 - 91 and class notes

 4. The public office or quasi-public office:
● May be under a legal duty to care for someone because of your occupation
● Examples
○ Police, Ambulance services, Fire brigade
● An ordinary individual isn’t under a general duty to inform the police of a crime but the public
office or calling occupied by policies offices have a legal duty to act

5. Statute
● The legislation creates positive duties to act or speak
○ ​E.g. income tax (have to pay), have to report accidents, sexual offences (NB:
required to report the abuse of a child if parent)
·

● Common-Law: E.g. treason (must report if you know someone planning to commit
high treason)
● Court Order: E.g. contempt of court (if you don’t pay; failure to appear)

6. Contract
● A legal duty may be assumed by an agreement, express or implies.
○ Doctor’s contract with patients.

Notes adapted from Burchell pages 69 - 91 and class notes