Study Unit 7 (CRW2601) - Culpability

and criminal capacity

Key:
Text book

Case law

Learning outcomes:
 Concept of culpability
 Principle of contemporaneity by:
o Applying the principle to a set of facts
o Applying the relevant case to law to a set of facts
 Distinguish criminal capacity from intention
 Opinion on whether an accused can successfully rely on the defence of non-pathological
criminal incapacity, with regards to:
o 2 psychological tests
o Causes of the criminal incapacity
o Onus of proof
o Role of expert evidence
o Courts’ practice of treating this defence with great caution

7.2 The requirement of culpability in general

Criminal Law 145-155

7.2.1 Introduction
Committing an act that complies with the definitional elements and is unlawful does not sufficiently
make someone criminally liable.

X’s conduct must be accompanied by culpability.

In the eyes of the law there must be a reason he can be blamed for his conduct.

This is the case if he commits the act in blameworthy state of mind.

7.2.2 Culpability and unlawfulness

Culpability need only be asked after unlawfulness has been established.

Unlawfulness is determined by objective criteria, and it doesn’t matter who you are (old, poor etc.)

In culpability the focus shifts to the individual.

Can the accused, considering his characteristics and knowledge, be blamed for commission of the
unlawful act?

Culpability can only be excluded because X lacked criminal capacity.

Grounds of justification refer only to unlawfulness NOT culpability!

7.2.3 Terminology
“Mens Rea” – is used to denote culpability. You can also use “fault”.

7.2.4 Criminal capacity and forms of culpability

Before someone can be said to have acted with culpability it must be clear that they are endowed
with criminal capacity.

Criminal capacity refers to mental ability.

Criminal Capacity does is NOT sufficient to infer that X acted with culpability.

X must also have acted intentionally or negligently.

Intention and negligence are the 2 forms of culpability.

Culpability = criminal capacity + intention or negligence

7.2.5 The Principle of contemporaneity

Criminal law 148-149; case book 131-134

This means that at the time of the exact moment of the act there must have been culpability on the
part of X.

If culpability exited prior to, or after the act, there is no culpability for the act.

If X is on his way to shoot and kill Y, but runs him over by accident, X is not culpable as there was no
intention.

Masilela 1968 (2) SA 558 (A)

X assaulted and strangled Y, intending to kill him. Thinking he was dead he set fire to the house. Y
was actually still alive, and died in the fire.

The court convicted X of murder. It did not accept the argument that these were two separate acts
(and therefore no intention).

7.2.6 Classifications in the discussion of culpability

 Non-pathological
 Mental incapacity
 Youth
 Intention
 Negligence
 Intoxication
 Provocation
 Instances where culpability is disregarded

7.3 Criminal Capacity

A person is endowed with criminal capacity if he has the mental ability to:

1. Appreciate the wrongfulness of his act or omission and

2. Act in accordance with such an appreciation of the wrongfulness of his act or omission

7.3.2 Criminal capacity distinguished from intention

Criminal capacity is the foundation of culpability.
The question of intention or negligence is only asked after criminal capacity has been established.

Intention or negligence is concerned with the X’s attitude or state of mind.

7.3.3 2 Psychological legs of the test

1st leg deals with the cognitive ability to differentiate between right and wrong.

2nd leg deals with the conative ability to conduct himself in accordance with this insight into wrong
and right (the ability to control your behaviour – self-control).

7.3.4 Defences excluding criminal capacity

Mental illness and youth are “particular defences”. They depend on particular mental
characteristics.

These defences are subject to rules.

General defence of criminal incapacity is known as non-pathological criminal incapacity.

This is NOT dependant on specific rules.

Eadie 2022 (1) SACR 663 (SCA) raises doubts about whether non-pathological incapacity defence still
exists.

7.4 The defence of non-pathological criminal incapacity (NPCI)

Criminal Law 158-164

7.4.1 General
All defences that don’t fall under mental illness or youth fall into this category.

NPCI first described in Laubscher 1988 (1) SA 163 (A).

NP criminal incapacity does not rely on the need to prove he suffered from mental illness at the
time.

X only has to prove that he suffered momentary criminal incapacity at the time, and that it was not a
manifestation of a mental illness. An example would be an emotional collapse.

Until 19 February 2022 here was no doubt about NPCI. Then Eadie happened.

7.4.2 The law before 2022 (Eadie)

Facts: X consumed a lot of alcohol at a function. Y overtook X and then drove very slowly so that X
could not overtake. Eventually X succeeded in overtaking Y. Y then drove at high speed behind X
with bright lights on. The two cars then stopped. X assaulted Y, and Y died of his injuries. This is a
case of “road rage”. Charged with murder X relied on the defence on NPCI. The court rejected his
defence and he was convicted of murder.

The court held that there was no distinction between NPCI owing to emotional stress and
provocation, on the one hand, and the defence of sane automatism, on the other.

If, as a result of provocation, an accused person relies on this defence, it should be treated as one of
sane automatism.

Read in the case book: Eadie 2022 (1) SACR 663 (SCA)

7.4.4 The present law

Unlikely that defence of NPCI would be successful. X would have to give evidence that that cast
reasonable doubt the voluntariness of X’s actions.

Summary
(1) “Culpability”, as an element of criminal liability, means that there are grounds upon which, in the
eyes of the law, the perpetrator (X) can be reproached or blamed for his conduct.

(2) Culpability consists of criminal capacity plus either intention or negligence.

(3) The culpability and the unlawful act must be contemporaneous.

(4) See the above definition of the concept of criminal capacity.

(5) Criminal capacity is based upon two psychological components, or legs, namely the cognitive and
the conative legs.
(6) The cognitive component deals with a person’s insight and understanding, and is present if X has
the ability to appreciate the wrongfulness of his act or omission.

(7) The conative element deals with X’s self-control and is present if X has the ability to conduct
himself in accordance with his appreciation of the wrongfulness of his act or omission.

(8) Before 2002, it was generally accepted that there is a general defence of criminal incapacity apart
from the defence of mental illness set out in section 78(1) of the Criminal Procedure Act and the
defence of youth.

(9) The general defence of criminal incapacity referred to above in the previous statement was
known as “non-pathological criminal incapacity”. In this defence, X’s mental inability is the result of
factors such as emotional stress resulting from provocation, intoxication, shock, anger or fear.

(10) In 2002, the Supreme Court of Appeal, in the case of Eadie, held that there is no difference
between the defence of non-pathological criminal incapacity resulting from provocation or
emotional stress, on the one hand, and the defence of sane automatism, on the other.

(11) It is submitted that until such time as there is more clarity in our case law on the question
whether the defence of non-pathological criminal incapacity still exists, the judgment in Eadie should
be limited to cases in which X alleges that his incapacity was caused by provocation or emotional
stress. If he alleges that he momentarily lacked capacity owing to other factors, such as intoxication,
the defence of non-pathological criminal incapacity still exists.

(12) It is submitted that if, as in the Eadie case, X alleges that he lacked capacity as a result of
provocation or emotional stress, he can escape liability only if he successfully raises the defence of
sane automatism.