UNLAWFULNESS

(3rd Element of Criminal Liability)

Goliath Test for Unlawfulness
OMISSIONS
Carmichele v - This case is the leading authority on an omission where there is a legal
Minister of duty to act positively
Safety and
Security [2002]
(not in depth) - Facts: Carmichele (C) was raped and assaulted by a certain person. This
person was found guilty and sent to prison. He was released on parole
a bit later. C heard about this and went to the police and pleaded with
them to not release this criminal bc he is a danger to her and society.
She did this multiple times. But he was nonetheless released on
parole. She was again assaulted by him. She then instituted an action
for damages against the minister of police for failing to protect her
and her consti right to bodily integrity and dignity. The issue the
court had to deal with is that this legal duty on the police did not yet
exist expressly

- Carmichele argued that the common law (which was lacking) should be
developed to provide for a legal duty in such cases.
- This case went all the way to the CC.
- The CC held: The common law was indeed defective for not providing a
legal duty on the police to protect Carmichele and the common law
should thus be developed. The court granted Carmichele her action
for damages.

- Main point of case:

If the common law is defective ito the consti, you can argue ito sec 8
and 39 of theconsti that the common law should be developed to
provide for a legal duty when there is no existing one

Omissions- CRYSTALIZED SITUATIONS WHERE A LEGAL DUTY (TO ACT POSITIVELY) ARISES:
B case [1994]: - Facts: Accused no. 1 was the mother of a 2-year-old boy. She left her
(Special husband, and she moved in with her boyfriend (accused no. 2).
Relationship)
Accused no. 2 severely assaulted the boy on a regular basis. Accused no. 1
NB IN CLASS was aware of this but didn’t do anything about it. These assaults
eventually culminated in the boy sustaining skulls fractures and then dying
as a result. Accused no. 2 was charged with murder. Accused no. 1 was
charged with assault and her charged arose by virtue of the fact that she
was aware the abuse was taking place on all of these occasions and failed
 to protect her child from it.

- Legal Q:
Was there a legal duty on the mother to protect her child from abuse from
accused no. 2?

- Court held:
o Yes, there was a duty on her by virtue of the parent child
relationship between. A parent has an inherent duty to protect
their child against abuse and accused no. 1 had failed to do
this. Her omission was unlawful and she was convicted as a
result.
- Sec 54 of the Sexual Offences Act + sec 110 of the Children’s Act places a
duty on a person to report sexual offences committed towards a
child, and failure to report this will lead to criminal liability

- Facts: Mahlangu was an employee at the petrol station. This petrol station was
Mahlangu case targeted for a potential robbery to take place. Mahlangu had knowledge of this
[1995]: fact (that the station was being targeted) but failed to disclose this info to his
employer. The robbery took place, and the employer was shot and killed during
this robbery. Mahlangu was charged with culpable homicide.
(Special
Relationship) - Legal Q:

whether there is legal duty on Mahlangu to report this fact to his employer? -
Court held: yes there was a duty by virtue of the special relationship between
employer and employee. There had been a duty on Mahlangu to report this
potential robbery. Mahlangu failed to do this and was found guilty
Williams [1998] - Facts: Williams was a police official. He, together with others, was charged as
case being accomplices to a crime (murder). William’s charges emanated from the fact
(Offical duty) that he failed to report these various offences while having knowledge of them.

- Legal Q: was there a legal duty on Williams to report these offences?

- Court held: yes, there was a duty by virtue of the office that Williams held
Pakane [2007]
SCA Involved a police officer who killed a suspect during a patrol and then tried to
134 (RSA) cover it up. Here's a breakdown of the case:
(official duty)  Crime: A police officer murdered a suspect and then attempted to defeat
the ends of justice by concealing his actions.
LEAVE OUT  Accomplices: The officer's colleagues failed to report the incident and
were convicted of being accessories after the fact to murder.
 Defense: The officer argued that he acted in self-defense, but the court
rejected this claim.
  Ruling: The Supreme Court of Appeal of South Africa upheld the
convictions of all parties involved. The officer received a 15-year sentence
for murder and an 8-year sentence for defeating the ends of justice. The
accomplices each received 8-year sentences.
The case highlights the importance of upholding the law, even for law
enforcement officers. It also emphasizes that those who try to cover up crimes
can face serious consequences.

*Kramer [1987] - Facts: Accused no. 1 (Kramer) was a surgeon. Accused no. 2 was an
case: anesthesiologist. They had to operate on a 10-year-old girl to remove her tonsils.
(Potentially Accused no. 1 was responsible for the surgery and accused no. 2 was responsible
dangerous) for the oxygen tubes etc. During the operation, the tube came out and resulted
in the girl dying from lack of oxygen. Both of them were charged with culpable
homicide.

- Legal Q:
whether accused no. 1 (the surgeon) had a legal duty to see to it that the
anesthesiologist performed his functions correctly?

- Court held: there is NO duty on the surgeon to check whether the

anesthesiologist does his job properly. They each perform their own functions
independently
o Accused no. 1 was acquitted. Accused no. 2 was found guilty

Russell [1967]
case: - Facts: Russell was assisting a crane operator in loading pipes onto a truck. At the
(Crane Case) spot this was happening, there was electric cables (they were initially switched
off). Russell was informed that these cables were going to be switched on at a
NB IN CLASS specific time. Russell failed to disclose this information to the other workers. The
cables were switched on and one truck touched the cable and person in the truck
was shocked and died as a result. Russell was charged with culpable homicide

- Legal Q:
was there a legal duty on Russell to disclose this info to the other workers? - Court
held: yes there was a duty by virtue of his prior conduct. Russell obtained
information (prior conduct) and should have disclosed this information to the
other workers. He did not do this and was found guilty
*Banda [1990] - Facts: Banda was charged with high treason. Banda argued that he committed
case these acts of high treason because his superior (who he is supposed to obey) told
(Specific him to do these acts. Banda raised the defence of obedience in order to escape
Offences – will criminal liability. However, the court rejected this defence
appear in
authority) - The court held:
o The orders that were given to Banda were ‘manifestly unlawful’ (Banda should
have been able to tell that the orders were unlawful)
 NB IN CLASS o Failing to execute a manifestly unlawful order will NOT result in criminal
liability

PRIVATE DEFENCE (1st Ground)

ATTACK (1ST COMPONENT OF PRIVATE DEFENCE)
PUTATIVE PRIVATE DEFENCE
*Joshua [2003] - This case illustrates the difference between private defence and putative private
case: defence
- Putative private defence = this is when X subjectively thinks in his mind that he
(LEAVE OUT) is acting in private defence, but objectively viewed this is not the case

- Facts:
X and Y are married and one evening Y tells his wife X that he will arrive home late.
X falls asleep and when Y gets home realises he left his keys at home so has to
break in through the window. X wakes up and thinks someone is breaking in. X
fires a shot at the curtain. When she goes to check who she shot, she sees it is
her husband Y.

- There was no unlawful attack on her so X cannot raise private defence in this
scenario. Putative private defence is evident here as X thought she was acting in
private defence (but we know this was not the case).
- Effect of putative private defence -> X’s act remains unlawful, but her fault may
be excluded
*Steyn [2010] - This is the first decision where private defence succeeded in the context of abuse
case in an intimate relationship
VERY NB IN
CLASS! - Facts:
Mr and Mrs Steyn were married for over 30 years. They had a very stormy
marriage. The deceased abused the accused physically and emotionally on a daily
basis. For example, he would lock her in her bedroom for the whole weekend to
the point where she would store food in her bedroom. She was on chronic
antidepressants. On the day in question, they had a fight during dinner and he told
her to go to the room and not come out. He was very aggressive. At some point
during evening she realised her medication was in the kitchen so she had to
leave her room to get them. In fear of the man, she took a firearm with her.
When she entered the kitchen, he threatened her with a knife and screamed at
her. She fired a shot and ran away. This shot killed him. She was charged with
murder. She relied on private defence → at the moment she fired the shot, she
believed he was about to attack her with a knife.

Court Decisions:
- The trial court rejected her defence and found her guilty. She then appealed
against this conviction.

- The SCA assessed the merits of her defence of private defence and weighed up
the reasonableness/proportionality of the attack and her defence
 - Legal Q:
Were there other alternatives in the moment at her disposal? Could she have
turned her back on the deceased and run away instead?
- The court emphasized certain factors to assess the reasonable proportionality
between the attack and the defence:
1. Relationship between the parties
2. Age + gender + physical strength of the parties
3. Location of the incident
4. Nature and severity of the attack
5. Nature of any weapon used during the attack
6. Nature and severity of any injury or harm sustained during the attack
7. Nature and means used to offer a defence
8. Nature of any harm or injury that would probably have been inflicted ito
the defensive act

- Court held it could not have been expected of her to put her life in danger and
turn her back on the deceased and run away. On the facts it showed they were
in close proximity to each other so turning around would not have helped.

- Court held that the defence of private defence succeeded and she was found not
guilty
FAULT/CULPABILITY, UNLAWFULNESS
*Trainor [2003] - Gender is not an overriding factor, but the court will look at the facts of
case the case (e.g. the strength of the parties etc.) to assess proportionality

- Facts: the accused and the complainant (no deceased) were married and it
was a stormy relationship. There was an interdict prohibiting the
accused from physically attacking the complainant. On the morning in
question, the accused was in their garage getting his car ready to go to
work. There was a fight between them (she didn't want him to go to
work). She stood in front of his car and said she’s not moving. He got out
of the car and he kicked her in her shins. She laid charge against him for
contempt of court bc he assaulted her (went against the interdict). He
raised private defence and said that she was about to attack him and he
was merely defending himself in the situation
- The court had to consider the Steyn factors (see above)

- Court held
he had exceeded the boundaries of private defense bc he applied more force
than was necessary. He was bigger and stronger than her and could have
chosen to act another way (he could have walked away). She wasn’t
really a danger to him
- His defence of private defence failed
 - Main point: X must not cause more harm than necessary to avert the
attack. If there is a less harmful way to defend himself, then X must
resort to the less harmful method
KEYNOTE ON CASES; Joshua and Trainor have an impact on fault/culpability, not unlawfulness
Steyn – battered woman and private defence
*Jansen [1983] NB: private defence does not apply to a pre-arranged dual
case - Principle illustrated in this case: you cannot raise private defence within the
context of a prearranged dual/fight.
NB IN CLASS
- Facts: the accused and the deceased had been arch enemies for a while. They
decided that they would settle their differences once and for all. They arranged to
meet at a place and fight it out. Both of them were armed with knives and the
deceased first stabbed the accused and then the accused stabbed the deceased in
the heart. The deceased died. The accused was charged with murder. He relied on
private defence and said that he merely defended himself against the deceased.
The accused argued that he acted lawfully ito private defence

- Court held:
that one cannot act in private defence in the context of a pre-arranged dual.
Both the accused and the deceased were acting unlawfully. The accused was
thus found guilty of murder
*Van Wyk [1967] You can act in private defence to protect a legal interest (life, body, integrity,
case property etc.) of yourself or another person
NB IN CLASS
- This case illustrates using private defence to protect your property

Facts:

Van Wyk was the owner of a shop. He had been the victim of burglaries on a
regular basis. It reached at point where he didn’t know what to do anymore (this
case occurred before we had security companies). He set up a device in his shop
that was connected to a firearm -> should a burglar enter a shop, the device
would be activated and the firearm would be fired. He placed a notice outside the
shop saying that the shop was protected by this device. The thief did not read this
notice or take it seriously. A break-in occurred and the device was activated and a
shot was fired which fatally wounded the deceased.

- The accused (shop owner) was charged with murder. He relied on private defence
saying that he merely protected his legal interest (property) against further break
ins. There was no other way he could do protect his interests

- Court had to assess the following:

o Is property a legal interest -> yes
o Did Van Wyk act within the scope of private defence? -> yes

- The prosecution could not prove there were other less serious means at his
 disposal to protect his legal interest. Thus, he was found not guilty

- Even though the facts of this case are a bit outdated (as we have security
companies now), it still serves as authority that property is a legally protected
interest and a fundamental right recognized by the consti. You can act in private
defence to protect your property
*Mogohlwane
[1982] Case Another req of private defence is the imminence req (an imminent or
immediately threatening attack which is not yet completed)
(NB!)

IN CLASS - Facts: the accused was on his way home from work. He had a paper bag
with him containing certain items (food, clothing etc.). He was waiting at
the station for his train. The deceased approached him and tried to steal his
bag. The accused initially resisted but the deceased had an axe with him
and threatened the accused with it. He then stole the accused’s bag. The
accused ran home to search for help. In this moment he grabbed a kitchen
knife and ran back to the scene. He demanded that the deceased hand
his bag back. In that moment the deceased threatened him again with the
axe, so the accused stabbed the deceased. He was charged with murder.
His defence was private defence

- The court had to assess whether the requirement of imminence was

complied with. In other words, ito the initial altercation between them,
were these 2 events close enough ito time that they could be
regarded as 1 continual event? Or was the initial attack completed
when the accused first left the scene?

- The court held that the 2 events were one continual defensive action so
closely connected in time that they could be regarded as 1 continuous
act of defence. The attack had not yet been completed. This
imminence req was complied with. Private defence succeeded here

- The court must look at the facts and circumstances of each case. If the
events were too far removed from each other, the imminence req would
not be satisfied.
K Case:

NB IN CLASS

Van Vuuren it is possible to act in private defence of another person’s (a third party’s) legal
[1961] case interests

- Facts: The accused was charged with assault. The facts revealed that he, his wife,
and the complainant attended a prize-giving function at their old high school. The
complainant felt aggrieved that he had not been thanked enough for all his
contributions. He started swearing at everyone, including the accused’s wife. The
accused grabbed his arm and warned him not to use foul language in front of his
wife. The complainant went to the police and laid a charge of assault against the
accused. The accused relied on private defence in that he merely protected his
wife’s dignity
- Legal Q:
Can you act in private defense ito of another person’s legal interest? -> yes - When
someone swears at you, your dignity is infringed. Dignity is a recognized and
legally protected interest. The husband acted in private defence of his wife’s
dignity. The court found him not guilty

DEFENCE / DEFENSIVE ACTION (2ND COMPONENT OF PRIVATE

DEFENCE)
*Zikalala [1953] - The accused went to a very overcrowded pub. During the course of the evening,
case the deceased (a random drunk man at the pub) had come too close to the
accused and threatened to stab him with a knife. In that moment, the accused
IN CLASS NB stabbed the deceased with a knife. He was charged w murder and relied on
private defence

- The court had to assess if the accused’s defensive act was necessary and
whether there were less serious ways to avoid the attack
- The court found him not guilty bc his defensive action was necessary in the
circumstances – it was very crowded so he couldn’t have escaped easily. The
prosecution failed to prove that there were less serious ways to avoid the attack.
He was found not guilty.
*Govender v
Minister of
Safety and
Security

LEAVE OUT

- DEFENSIVE ACT SHOULD NOT CAUSE MORE HARM THAN NECESSARY.

T [1986] - Facts:
The accused (16) and deceased (18) attended the same highschool. On a daily
(means basis, the deceased bullied the accused emotionally and physically. The deceased
necessary) was physically bigger and stronger than the accused. Despite fearing the deceased,
the accused always tried to be friends with the deceased (he would try make
amends with him and arrange meetups with their mutual friends etc.). One night
they all met up at one of the friends’ houses. The accused was nervous and
anxious around the deceased. The deceased became physically aggressive
towards the accused. Because of a previous incident, the accused knew that his
friend’s parents kept a firearm in the toilet. He ran to the toilet to get the gun and
then went back to the lounge. When the deceased became aggressive towards
the accused and taunted him, the accused fired a shot with this gun and fatally
wounded the deceased. The accused was charged with murder.

- In the trial court he was found guilty. He appealed against his conviction.

- On appeal, it was held that his defence of private defence should succeed
having regard to the background and events on day in question. It was clear that
the accused feared for his life. Appeal court also held that the trial court had
over emphasized the interests of the deceased and didn’t have regard to the
proper legal interest of the accused in that context. Private defence thus
 succeeded.
More Putative Defence
*Motleleni - This case occurred before ‘putative private defence’ was even coined as a term -
[1976] case:
NB IN CLASS Facts: the accused and deceased ran into one another on Friday and the deceased
told the accused that he was going to stab the accused the following Monday. On
Sunday morning, this threat was repeated. On Sunday evening, while the accused
was in his house, the deceased suddenly appeared at the front door with his hands
in his pockets. The accused thought in his mind that the deceased had come to
carry out his threat to stab him. The accused stabbed the deceased. He relied on
private defence even though, objectively, there was no unlawful attack being
launched on him in that moment

- The accused’s act remained unlawful, but the court found him not guilty. The
accused had no intention to kill the deceased and he also wasn’t negligent (a
reasonable person would have acted the same way he did).
Naidoo [1997] - Facts:
case: Naidoo (19) lived in a house that had been the target of various attempted
burglaries. On the night in question, it was very dark and Naidoo heard noises
LEAVE OUt outside the kitchen door. Naidoo grabbed his gun and fired a shot through the
kitchen door, only to find that when he opened the door it was his dad outside
that he shot. Naidoo was charged with murder. He relied on private defence -
Court firstly held we aren’t dealing with private defence but rather with putative
private defence. Naidoo subjectively believed he was in danger, but this wasn’t
objectively the case. Naidoo’s act was unlawful

- Court had to asses whether fault should be excluded?

Naidoo didn’t have the intention to kill his dad but he acted negligently. A
reasonable person in Naidoo’s position would have acted differently. He was
thus found guilty of culpable homicide.
Dougherty case: - When X subjectively believes he is acting in private defence, but objectively
viewed this is not the case -> this is putative private defence
- Effect of putative private defence: fault is excluded but act remains unlawful
EXCESSIVE FORCE
*Ntuli [1975] - Facts:
case: the accused and his mother-in-law did not get along. He went to mother-in law’s
house to fetch his wife. The mother-in-law (the deceased) told him that the wife
NB wasn’t there. A verbal altercation arose between them. She tried to hit him and
he threw a walking stick at her. This hit her head and caused severe skull
fractures and she died. She was old/senile, whereas the accused was strong/big.
He relied on private defence

- The court held that the accused had exceeded the boundaries of private
defence. The court considered his strength/build and consequently held there
were less harmful ways he could have averted the attack. He applied excessive
force in the context. He was found guilty.

NECESSITY – 2ND Ground of Justification

NB!!!!! - Main case dealing with necessity
Goliath
- This case is an example of necessity by means of compulsion/relative force
Very nb in class - If X infringes greater interest to protect minor –GROUND EXCLUDING
CULPABILITY-e.g X kills to protect his/her own life-GOLIATH NB! NB!

Facts:
• Accused 1 (A1) and accused 2 (Goliath) were walking down a street one evening
and came across the deceased. When A1 saw the deceased, he pulled out a
knife and asked the deceased to provide him with cigarettes. The deceased
informed A1 that he had none on him.
• Goliath (G) then demanded that the deceased give him money. Deceased
indicated that he did not have any on him.
• A1 ordered G to take hold of the deceased so that he could stab the deceased.
Goliath did not want to do this, but A1 said that if he fails to do what he
says, he will stab G to death
• G was confronted with the choice of either sacrificing his own life, or do as he
was told → relative force = it is not absolutely impossible for G to
escape/choose another option. G had a choice: have his interest infringed OR
allow someone else’s interest to be infringed to protect his own
• G held the deceased by arms and A1 stabbed him to death. He died as a result of
the stab wounds
• G and A1 charged with murder
• A1 was found guilty
Legal Q:
• Court had to determine whether G was guilty, as he relied on necessity as a
defence (more specifically, relative force)
• Court had to determine: Was relative force and compulsion in this context a
complete defence to the charge of murder?

Trial court held:

• A1 was found guilty of murder
• G was acquitted on the ground of necessity
• Majority held:
it can be a complete defence
• BUT majority did not answer the question as to whether
compulsion/necessity in this context should exclude unlawfulness or whether
it should exclude fault
o Why is this distinction important? Bc this case dealt with equally weighted
interests → G’s right to life and the deceased’s right to life -> more
complicated than assessing unequal interests (NB!)

• Principles held by the majority:

o Unlawfulness is assessed objectively
 o There will never be higher demands on an accused than that which is
reasonable
o Generally accepted that a person will regard their own life as more
important than the life of another UNLESS X was a complete hero in the
circumstances
o Every case must be assessed based on its own facts and circumstances
o Compulsion must have been of a serious nature
o Majority held: compulsion within the context of necessity can be a
complete defence to murder. BUT the majority left the question open as to
whether necessity should exclude fault or unlawfulness

• Minority decision provided more clarity NBBB!:

o Minority held: within the context such as the facts of Goliath, necessity
(more specifically compulsion as a manifestation of necessity) should
exclude fault and NOT unlawfulness
o Why? -> If the deceased defended himself against Goliath ito private
defence, can the deceased rely on the defence of private defence within the
context of necessity, if necessity excludes unlawfulness? NO → because
Goliath was acting lawfully, and you cannot act in private defence against a
lawful attack
o So it makes sense within this context to regard G’s act as unlawful but
excluding fault
o If the deceased defended himself with private defence, he would succeed
bc G’s act would still be unlawful. G would still be found not guilty bc his
fault is excluded (but he is still acting unlawfully)

• Summary of minority decision in Goliath:

→ bc the attacker would have been acting lawfully

o BUT if attacker’s compulsion excludes fault, and the person
being attacked defends themself, the defensive act would be
lawful bc they are acting in private defence against an
unlawful attack
o Attacker will be found not guilty on ground of necessity bc his
fault is excluded (his unlawfulness is NOT excluded)
o This minority decision is to be supported bc it is a more logical
application of the general principles of criminal law

Malan 1998 Facts:

Case
- Malan had a wine farm and his neighbours goats had the habit of entering
NB IN CLASS his farm and destroying his vineyards
 - On various occasions he brought it to the attention of the neighbour
(complainant) but the complainant failed to do anything about it
- He informed the complainant that if this happens again, he is going to
kill the goats - On day in question, the goats entered his farm and at that
moment he shot them and charged with malicious injury to property
(animals are regarded as property) - Malan relied on the defence of
necessity → he infringed his neighbour’s property interest in order to
protect his own property interest
Legal Q
- Court had to assess the merits of the defence of necessity.
Held:
- Defence of necessity succeeded

- It could not have been expected of Malan to once again have these
goats impounded (which cost him money) and to continue to endure
the damage to his property
- His actions were reasonable
- Court found him NOT guilty of malicious injury to property

Requirements for defence to be necessary

Nkhumeleni o Facts: The accused (Nkhumeleni) attacked the complainant with a knife.
[1986] case: Complainant had his dog with him and when the dog saw N attacking his owner,
(Person cannot he ran to attack N. N stabbed the dog. N was charged with assault and cruelty to
rely on necessity animals. On this cruelty to animals charge, he relied on necessity
as a defence if
what appears to o Court held:
them to be a ▪ You cannot act in necessity when someone is acting in private defence against
threat, is in fact you
lawful conduct) ▪ The dog was acting in protection of his owner (acting lawfully)
NB IN CLASS ▪ N was compelled to endure the threat of the dog
▪ Found guilty of cruelty to animals → defence of necessity failed
Rabodila [1974] o Facts: The accused persons were charged with crossing the SA borders at a
point they were not allowed to ito a certain immigration Act. The facts revealed
(Defence must that where they were residing in Lesotho, their homes were being attacked and
be necessary) they were being assaulted. They had no other option but to take flight and enter
NB IN CLASS SA at that point. They relied on necessity as ground of defence

o This is an example of contravening a legal provision to protect one’s own life

(infringe lesser interest to protect a bigger interest)

o Court held:
▪ They were found not guilty → it was the only available option at their disposal
-> they acted in necessity to protect their own lives
Manifestation of Necessity (more on relative force)
*Mandela o This case dealt with relative force as a manifestation of necessity
[2001] case
o Facts: The accused was part of a criminal gang and was ordered to murder the
deceased and if he did not execute this order, he would be killed. There was a
time lapse of 2 weeks between the accused receiving the order and executing
the order → there was no immediate threat. He eventually executed the order
and killed the deceased. He was charged with murder. He relied on the defence
of necessity (more specifically compulsion) as a ground excluding his
unlawfulness

o Court held:
▪ This case differs from Goliath case. In Goliath, it was an immediately threatening
situation that Goliath was facing. BUT in Mandela’s case there was a time lapse
▪ There were other alternatives at Mandela’s disposal (he could have for example
gone to the police) that he did not use
▪ Necessity based on relative compulsion failed
▪ The defence / defensive act was not necessary (there were less harmful
alternatives available to him)
▪ Mandela was found guilty

• Goliath case versus Mandela case

o With Goliath we are dealing with an immediately threatening situation o In that
moment, Goliath had to make a decision: am i going to sacrifice my own life for
the sake of potentially saving the deceased’s life, or am i going to save my own life
and sacrifice the deceased’s life? But in Mandela there was a time lapse between
the threat and the execution of the deed
Solicited Necessity
Pretorius - This case is a classic example of where a legal provision is infringed to protect a
1975(2) SA bigger interest (3rd party’s life)
85(SWA)
- Facts: P had a 2 year old daughter who got hold of a box of Disprin. She had a
NB IN CLASS few, P noticed and feared that her life would be in danger. He rushed with her to
hospital. On the way, he was caught in a road block for exceeding the speed
limit.

- On this charge he relied on the defence of necessity → believed his daughters

life was in danger
- Court held: P was found not guilty → necessity succeeded as a ground for
justification
Proportionality
*Maimela case - This case illustrates the principle of proportionality with unlawfulness regarding
Proportionality: necessity
+ - Proportionality is always about the weighing up of interests ito the
proportionality analysis
LEAVE OUT
- This case dealt with weighing up 2 people’s right to life
 - X will generally regard his own right to life as more important than someone
else’s - It is important to assess if X’s act was reasonable in the circumstances →
would a reasonable person in the same circumstances have acted similarly?
Excessive Force
Bailey case - Where X exceeds the boundaries of necessity

(Ties in with - Facts: Bailey and another accused (A1) were charged with murder. They were in
Mandela case) prison and A1 ordered Bailey to kill the deceased as part of prison gang activities.
If Bailey failed to kill the deceased, he himself would be killed. But this was not
NB an immediate situation (there was a lapse of time). Eventually Bailey executed
the order and killed the deceased. Bailey was charged with murder and relied on
defence of compulsion in the context of necessity

- Legal Q: Whether compulsion within this context would succeed as a defence

excluding B’s unlawfulness? Would a reasonable person in Bailey’s circumstances
have acted the same?

- Child court held:

o B was found guilty of culpable homicide
The state argued against this conviction → he should have been convicted of
murder
o Compulsion in the context of necessity should not have operated as a defence

- On appeal:
o Court changed the verdict → Bailey was found guilty of murder
o Held that the reasonable person would not have succumbed to this
compulsion
o There were other options available to Bailey other than killing the deceased

IMPOSSIBILITY
(3RD GROUND OF JUSTIFICATION)
Requirements for the defence of impossibility
Canestra case o Facts: Canestra loved going fishing, and one day he went fishing at a certain spot
(demonstrates where, ito a certain Act, he was prohibited from catching undersized fish.
almost all the Canestra was charged for catching undersized fish. He relied on the defence of
requirements impossibility bc he argued that it was impossible for him to not catch the
and definition of undersized fish with his net that also catches the proper sized fish
impossibility)
o Legal Q: Court had to assess the merits of the defence of impossibility. There
was no legal duty on X to catch fish

o Court held:
▪ Bc there was no legal duty on X to catch fish, the defence of impossibility failed
▪ Defence of impossibility can only operate where there is legal duty on X to act
positively and X fails to do so
Leeuw case o Facts: L was charged for driving without a drivers licence. He raised the defence
(Requirements that it was impossible for him to obtain a drivers licence within that area
and definition) o Court held: There is no legal duty on X to have a drivers licence and impossibility
NB IN CLASS can only prevail in cases where there is a legal duty to act positively and X failed to
do so
o The court stated that impossibility is only applicable where there is a legal duty
to
act positively and it was not objectively impossible for him to obtain a license.
o The law does not impose a legal duty upon someone to drive.
o A mere inconvenience does not amount to impossibility.

Conflicting Interests
*Mxhosa case o The facts took place at time where there was legislation prevailing that
(Conflicting prohibited certain people from being in certain areas after a certain time
Legal Interests-
reasonable o Facts:
person test ) ▪ M was charged ito this Act for being on the Cape Peninsula after 7pm. BUT the
NB IN CLASS facts revealed he was charged with another offence from which he was released
on bail.

Bail condition: he had to report to a certain police station between 7pm and 9pm
every evening. There were 2 conflicting legal interests: Act prohibiting him + bail
conditions. M decided to comply with his bail conditions.

He relied on impossibility as a defence

o Legal Q:
▪ Court had to assets the merits of his defence of impossibility

o Court held:
▪ There were 2 conflicting legal duties
▪ What would a reasonable person in M’s position have done? ->a reasonable
person would have also complied with their bail conditions. A reasonable person
would have regarded bail conditions as the more serious duty
▪ Impossibility succeed as a defence
▪ Could have also raised necessity as a defence
Close Settlement Solicited Impossibility: X cannot rely on impossibility if she herself is responsible
Corporation for the circumstances in which she finds herself
NB IN CLASS
- Facts:
CSC was a company. Ito the Companies Act that prevailed at the time, a company
was under a legal duty every year to compile a list of all its members within 14
days after the AGM. The AGM was held on 18 December which inherently
resulted in the list only being available in the next year (14 days later). CSC was
charged ito Companies Act for not complying with this provision. CSC relied on
impossibility as a defence → it was impossible to compile the list within that year
bc the 14 days would have lapsed. But CSC was responsible for this (could have
arranged the AGM on an earlier date)
 - Court held:
o X cannot rely on impossibility if she herself is responsible for the
circumstances in which she finds herself
o Court nonetheless granted the defence of impossibility and found them not
guilty of non-compliance with the provision of the Act

CONSENT
(4th GROUND OF JUSTIFICATION)
*McCoy case Facts:
NB IN CLASS - The complainant was an air hostess, and the accused was the pilot. On the day in
question, the pilot was about to land the airplane, but the complainant failed to
fasten her seatbelt. The pilot told the air hostess that unless she consents to
physical punishment (hiding or spanking) she would lose her job. She was an
immigrant who relied heavily on the finances and by virtue of being grounded
she faced the danger of losing her income. Therefore, C consented to the
spanking which was extremely humiliating and degrading. The air hostess
submitted and received her punishment. The accused was charged with assault.
The accused’s defense was that the air hostess consented to the punishment.

Court Held:
- The court rejected the defence.
- M’s actions were unlawful in itself. His act was inherently bad=mala is se
- Not regarded as valid consent.
- A mere submission does not constitute consent.
- C’s consent was submitted under duress and co
The court rejected this defence, as a result of violating the boni mores criterion –
the air hostess did not consent to the ‘spanking’, she merely submitted due to fear
of losing her employment(duress), and the consent was held to be invalid.
Sikunyana case - This case illustrates the problem surrounding consent to serious bodily injuries. –
NB IN CLASS
Facts:
The appellant was charged with assault with the intent to carry out grievous
bodily harm. The facts revealed that the complainant had consulted with the
appellant who professed to be a witch doctor capable of releasing evil spirits.
However, the appellant’s practice of exorcism involved inflicting serious bodily
harm. On the day in question, the complainant requested the appellant to
perform an exorcism on her. The appellant sprinkled medicinal fluids on her and
burned her body with live coals. She sustained serious burn wounds. When the
appellant was charged with assault by complainant, the witch doctor had held
that she had consulted him and consented to the above treatment.

- The court had to assess and determine whether the consent granted in these
circumstances can be regarded as valid. Can you validly consent to being burned
and seriously injured?

The Court held:

 - S’s actions were unlawful in itself, they were mala in se=inherently bad conduct.
- Injuries sustained goes beyond what a person can validly consent to
- The court held that the consent given was invalid insofar as the Appellant’s
dangerous practices + inflicting serious bodily harm can never be justified under
the umbrella of consent -> this offends the boni mores criterion and its concept
of reasonableness. The court rejected the Appellant’s defense.
Robinson case Facts:
NB IN CLASS The deceased in this case experienced severe financial difficulties and approached
the appellant requesting the appellant to kill him by shooting him in order to
have his life insurance policy pay money to his ‘to be’ widow. The appellant at
first refused, however, later executed the act, and shot the deceased. The
appellant was charged with murder. The appellant raised the defence that the
deceased requested his murder and consented to be killed.

The Court held:

- The court held that you cannot consent to your own murder -> still amounts to
murder. The consent by the deceased can, at most, serve as a mitigating factor in
terms of sentencing, but can never exonerate the accused in the murder.
Nkwanyana case Facts:
NB IN CLASS - In this case, the deceased was suffering from severe psychiatric disorders, and
requested the accused to shoot her. On various occasions, she uttered this
request. The accused eventually agreed and shot the deceased. The accused was
charged with murder. The accused’s defense was that the deceased had given
consent to being murdered.

The Court Held:

- The court, as in Robinson, held that you cannot consent to your own murder.
- The accused was found guilty of murder.
*R v Brown - This case involved masochism (getting sexual pleasure from pain being inflicted
[1993] 2 All ER on you) + sadomasochism (getting sexual pleasure by hurting others)
76 (HL) - This case illustrates the notion that consent may, upon crossing certain
NB IN CLASS boundaries, become invalid
Crimes where consent is sometimes defence and sometimes not-assault-
Dividing line between harm to which one can consent and to which one
cannot often blurred-Brown

- Facts:
The appellants were a group of men (sadomasochists) -> would regularly get
together at a rented premises (their torture chambers), which was equipped with
various sexual instruments, to severely injure each other (including torture and
genital mutilation) as a means to derive sexual gratification. The appellants were
charged with assault with the intent to inflict grievous bodily harm.

- In the trial court, they were found guilty. However, they appealed against their
convictions on the basis that their acts occurred in private and all activities at their
‘torture chambers’ were consented to.
 Court held:
- Consent in this case was against public morals/policy and person cant
onsent to being injured in that manner.
- The trial court rejected consent and held that it was against public interest.
- The appellants argued that these acts happened in private and they
consented to it.
- However, public interest and society demands that these types of acts
cannot be consented to.
- Public policy requires that people be protected.
- The boni mores plays a central role in determining whether consent is a
valid ground of consent
- Court had to weigh the right to privacy with right to bodily integrity.
- The English court held that consent to participate in these activities was invalid as
these activities were very severe and involved several other risks (e.g. contracting
HIV/AIDS)
- The appellants were thus found guilty.
- Valid consent crossed the boundary and became invalid consent (‘non-consent’)
S [1971] case - This case illustrates that mere submission to a certain act (such as a sexual act)
NB IN CLASS will not sufficiently constitute valid consent.

- Facts:
the complainant was walking down a street when a police vehicle stopped next to
her, driven by the accused, informing the complainant he was about to arrest her.
The accused forced the complainant to get into the vehicle, drove around for a
while, and parked the vehicle at a quiet spot. The accused told the complainant
that he would arrest her if she did not have sexual intercourse with him. The
complainant submitted and had sex due to fear -> later laid a charge of rape
against the accused. The accused raised the defense that she had consented to
sexual intercourse.

The Court Held:

- The court held that from the facts and circumstances of the case, the
complainant had merely submitted. Mere submission to a sexual act does not
constitute valid consent. The accused abused his position of authority (She
merely submitted to the act out of fear and Submission is not equated to
consent)., and in that capacity, inflicted further fear on the complainant,
pointing towards the fact that no valid consent was present
- Consent as a ground of justification was rejected, and the accused was held guilty
for rape and he abused his position of authority.
AUTHORITY 6TH GROUND OF JUSTIFICATION
S v Walters NB! Official capacity-section 49(2)-use of force in effecting arrest
NB! - This case was decided using the old s49(2) before the amendment.
NB IN CLASS - The court had a copy of the intended proposed amendment
Facts:
- W and his son had a bakery in the Transkei.
 - During a burglary at the bakery, W and his son confronted the burglar.
- The burglar ran away and they shot him.
- s49(2) had a wide enough scope to include a private individual acting
in public authority:
 The burglar later died in hospital.
 W was charged with murder and he invoked the old s49(2):
 W and his son tried to arrest the burglar but the burglarresisted.
 W therefore, acted in terms of s49(2).
 Justifiable homicide.
 Acted lawfully and should therefore, not be guilty.

Court Held:
However, the state prosecutor disputed the constitutionality of
section 49(2).

The matter was postponed and referred to the CC for clarification:

- Paragraph 54 of the judgement is of particular importance
- The CC held that the main purpose of an arrest is to bring the suspect
- before court.
- An arrest is not necessarily the only means of bringing a suspect before
court and may not always be the most appropriate means either.
- Force may only be used where it is necessary to carry out the arrest.
- In deciding what degree of force is necessary, all the circumstances, have
to be taken into account including the threat of violence that the suspect
may pose to the community. (proportional)
- Shooting a suspect solely to affect an arrest will only be allowed in very
limited circumstances unless the suspect poses a threat of violence to
the arrester or others or is suspected on reasonable grounds of having
committed a crime involving the infliction or threatened infliction of
serious bodily harm and there are no other reasonable means of carrying
out the arrest, whether at that time or later.
- These limitations detract from no way the right of the arrester
attempting to carry out an arrest to kill a suspect in self defence.
- Therefore, private defence and authority may overlap.
- The requirements for the use of force:
1. The force must be necessary;
2. X’s conduct should be the only way to affect the arrest:
 If there are less dangerous ways of affecting it, then those options
should first be exhausted.
3. X should also preferably warn the suspect by for example firing a
warning shot.

- The CC ruled that the old section 49(2) was invalid as it was
unconstitutional, however Walter and his son were tried in terms of the
old section and found not to be guilty
Motswana This case dealt with the use of police dogs to effect an arrest
NB IN CLASS
- Facts: An arrest was being effected by the police official. M (the suspect) resisted
the arrest. Police official had a police dog with him and in order to effect the arrest
he made use of the police dog. During the course of the arrest, M sustained
injuries from the police dog
- Legal issue:

Court had to assess whether the force used to effect the arrest was reasonable
in the circumstances

- Trial court held:

o The use of force was reasonable and necessary to effect the arrest

- On appeal the following was held:

o After assessing the context, it was held that inflicting a police dog on a suspect
in order to effect an arrest impacted severely on that person's constitutional
courts (bodily integrity)
o It was held that it was humiliating and that police officials must exercise the
greatest degree of responsibility before using a dog to arrest a suspect
o With regard to the facts and circumstances, the use of force was not justified
as the police official had not considered a less dangerous ways of arresting the
suspect (e.g. calling his colleagues to assist him)
o The proportionality requirement must always be taken into account → nature
and degree of force must be proportional to the seriousness of the offence and
the danger that the suspect poses to the community
Potgieter - Facts:
NB IN CLASS She went to bank, filled out withdrawal forms, and withdrew money from
another person’s account. But she had that person’s authority to do so. Accused
was
charged with fraud. She relied on (private) authority as a ground of justification

- Court held:
o Court found her not guilty as the private authority she had received from that
person to withdraw money justified her actions
CHASTISEMENT
(based on parental authority)
Janke & Janke - Parental right to chastisement should be exercised for educational purposes
case only
and it should be reasonable having regard to various factors listed by the court:
KNOW a. The age of the child,
BACKGROUND b. the degree of punishment required,
BCZ S V YG c. the aim behind the chastisement

->The consti came into effect after the Janke & Janse decision
S v YG case - At the time of this case, the consti had abolished corporal chastisement in
schools.
NB IN CLASS But the issue regarding parental chastisement still remained
- In this case, the CC ruled that the physical punishment of children by their
parents is
Unconstitutional

- Facts:
the parent caught the child watching pornography on his ipad. He confronted his
child but the child denied it. He physically chastised his child and was charged with
assault. As a GoJ, the parent relied on the right of parents to chastise their children
to a reasonable extent

- The court referred to the Janke and Janke decision

- HC held: he exceeded the bounds of chastisement + chastisement of children is
unconstitutional as it infringes their dignity, bodily integrity
- CC held: parental chastisement is unconstitutional
Collett - Dealt with chastisement within the context of an employer-employee situation
NB IN CLASS
- Facts: C caught the complainant (a 16 year old farmworker on his farm) stealing
from
his farm. He physically chastised the child in order to punish him for the theft. C
was
charged with assault . He raised the GoJ that his actions were justified as he as
the
employer has the right to chastise him for his wrong deeds
 o Chastisement in this context offends the boni mores (legal convictions of the
community) and is thus unlawful
o Chastisement in an employer-employee situation is never lawful
o Employer was found guilty
Obedience To Orders 7th Ground of Justification
Albert Case - Facts:
Albert, an 11 year old boy, was ordered by his father to steal 2 bags of hay from
the farm. This amounted to theft.

- Legal question:
does the ‘obedience to orders’ defence apply to parental consent? (yes)

- Court held:
A child would not question father’s orders and cannot tell the difference
between right and wrong. Therefore, this is a valid defence for a child
MANIFESTLY UNLAWFUL
Banda (NB!!) - case involves -equilibrium has to be established between order which
NB IN CLASS has to be obeyed and boni mores-distinction to be drawn between
unlawful and manifestly unlawful orders-an official under no duty to
obey manifestly unlawful order and compliance with manifestly unlawful
order no defence.

- Facts:
Banda was charged with high treason. He raised the following defence:
obedience to orders by superiors

- Court rejected this defence and held the following:

o An order to commit treason (very serious offence) constitutes a
manifestly unlawful order to which there is no duty to obey and if the
person obeys this order, this defence cannot succeed.
o A balance/equilibrium has to be established between the order which
has to be obeyed + the boni mores (legal convictions of society)
▪ A distinction must be drawn between unlawful orders and manifestly
unlawful orders
o An official is under no duty to obey a manifestly unlawful order
Mostert Case - Facts:
Accused and complainant were both employed by the traffic department. On the
day in question, the accused was instructed by his superior to go to the home of
the complainant who did not arrive at work. The complainant refused to
accompany the accused back to work. The accused used physical force resulting
in an assault charge being laid against him. The accused relied on the defence of
obedience to orders and argued that he used the amount of force necessary to
obey his superior’s order
 - Court held: 3 reqs for the defence to succeed:
o (1) The order must emanate from person in authority
o (2) X must have a duty to obey the order
o (3) X must not cause more harm than necessary to comply with the order - The
accused had acted reasonably and was thus not found guilty

The court held that M’s intentions were justified and that he did not have the
intention to assault the complainant. Merely used violence in order to comply with
the order

*Mohale case Facts:

o Clear example of manifestly unlawful
o M and another were charged with murder and attempted murder.
o They were members of Umkhonto we Sizwe – the military wing of the ANC.
o The shot and killed Tsonga, a “sell-out” and collaborator with the Apartheid
regime
and tried to kill another, T (a civilian).
o They were charged with murder and invoked the defence of obedience to
orders.

→ Court Held:
o The court held that it can never be lawful to kill an innocent person for political
gain.
o Their orders were manifestly unlawful and the compliance with a manifestly
unlawful order is not a defence.(NB!)

NB!:
→ Example- (combination between necessity and compliance with orders)
→ X orders Y to murder Z, and X complies with order. Defence for X – obedience to
order, will fail as it is manifestly unlawful! However what if there was a threat on
X’s life, necessity as a defence? Immediately threatening position ( would be
successful), or where time had lapsed,
(mandela or bailey construction comes into play where you are exceeding the
boundaries of necessity)
*Kgogong De Minimis Non Curat Lex
1980(3) SA  The law does not concern itself with trifles.
600(A)  Applying this principle, a court would, for example, not convict X of theft
of a pin; neither would it convict X of malicious damage to property if the
NB IN CLASS evidence reveals that, while trimming a hedge separating X’s property
from that of his neighbour, he merely cuts a few twigs off the hedge on the
neighbour’s side.
Facts:
- K was a state witness in a trial
- While in detention and during his evidence he submitted that he made the
statement freely and voluntarily.
- After this release he kept a piece of paper that was completely worthless
 was charged with theft.
- Coerced by the security police to write this statement, and to write specific
things in the statement
- Brought out a piece of paper which contained all the things the security
police told him to say
- After trial was over, he took it with him and the security police charged
him with theft

Court Held:
- The court stated that this amounts to a de minimis situation and the
court does not Concern itself with trivialities.
Visagie 2009 De Minimis Non Curat Lex:
(2) SACR 70 (T) Facts:
- The appellant left his car with M, the Mechanic (complainant) to have his
Leave out car repaired.
- They got into an altercation about how long the car had been in the
garage.
- V and M exchanged foul language and subsequently M instituted action for
assault to cause grievous bodily harm.
V was convicted in the trial court.

Court Held:
- The full bench of the Transvaal court held that the matter was trivial.
- The appeal was upheld

CAPACITY
(4th element of criminal liability)
Adams case Distinction: Capacity/Fault
PRESUMPTION OF SANITY (MENS SANA)?
LEAVE OUT
- In this case, the accused was found not guilty of possession because the mental
component of possession was absent. The reason for this was that the accused
was criminally incapacitated (due to intoxication) at the time he committed the
crime.

- The court distinguished between capacity and fault in this case

- CAPACITY: refers to the ability/inability of X to commit the crime. Capacity is a

prerequisite for fault. This means that we don’t have to assess whether X had
fault in order to establish whether X was capacitated or incapacitated at the
time of the crime

- FAULT (dolus or culpa): refers to the will and knowledge of unlawfulness during
the commission of the crime. Before we assess for fault, it must be established
that X was capacitated. This is because capacity is a prerequisite for fault
*S v Van der Distinction: 3 Functions of Mental Faculties
Merwe
NB! → a person’s mental faculties have 3 functions:
o Cognitive function (awareness):
KNOW THE 3 - It is directed towards X’s intellect/insight
functions - It refers to the ability to distinguish between right and wrong; and
- It relates to X’s awareness;
- e.g.) Does X know that shooting someone is wrong?

The Conative function (will) :

- This regulates self-control; and
- The power of resistance against the temptation to act unlawfully.
- e.g.) X realizes that shooting someone is wrong, but does X have the self
control to act on his knowledge?

Affection (emotion):
- This pertains to X’s emotions and his emotional life:
- Such as hate, anger, jealousy etc.
→ If a person has all three of these mental faculties, that person is psychologically
normal and will therefore, have capacity.
→ As stated above, if either (1) or (2) or absent, then X can have no criminal
capacity.
*S v Laubscher the defence of non-pathological criminal incapacity was coined as a term in our
1988(1) SA law (Capacity Test)
163(A) (NB!)
NB IN CLASS → Facts:
Mr L was married to Mrs L. They got married bc she fell pregnant. A few years
after their child was born, their marriage deteriorated and ended. On the day in
question, Mrs L (Mr L’s ex-wife) was at her parents’ house with her child. Mr L (the
accused) had informed her that he was coming to collect his son from them. After
he arrived, a verbal altercation arose and Mr L shot and killed both of Mrs L’s
parents. He was charged with murder (iro the parents) and attempted murder
(iro his ex wife). L raised the defence of non-pathological criminal incapacity.
This was the first time in SA law that this was raised as a defence.

→ Court Held:
o The court rejected L’s defence as well as sane automatism.
o L was found guilty of murder, but through mitigating factors he eventually
only received 3 years.
→ Pathological incapacity refers to incapacity emanating from something such as
mental illness.
→ Non - pathological incapacity refers to the second leg of the psychological test.
→ For example, in the Eadie Case the accused claimed that, due to his rage, he was
unable to act in accordance with what he knew was right and wrong.
→ Non - pathological incapacity could therefore, refer to the situation where
someone loses self – control for a short period of time.
Temporary non-pathological criminal incapacity
Eadie Case This case is an SCA decision, so we use this case as main authority
NB IN CLASS - Facts:
Road Rage Case
The accused was a hockey player. Him and his wife went to a hockey function at a
hockey club in Cape Town and had a few drinks. When they were driving home
after the function, the deceased was driving behind Mr Eadie (the accused) and
his wife. The deceased flashed his lights, drove past and overtook Eadie, and then
purposely slowed down when he was in front. Mr Eadie did the same thing
(overtook the deceased and then slowed down). Then the deceased did it again
too and this continued until the deceased and the accused reached an
intersection. When the cars were stopped, Eadie got out and approached the
deceased’s case.Eadie took his hockey sticked and smashed the deceased’s
windows and lights. Eadie told the deceased to get out of the car, but the
deceased refused. Eadie then dragged the deceased out of the car and started
assaulting him with his hockey stick. Eadie hit the deceased’s skull and the
deceased died. Eadie then drove home, changed his clothes, and drove back to
the scene. Eadie then phoned the police to come help (Eadie was creating the
impression that he was an innocent bystander looking for help). When the police
arrived at the scene, Eadie eventually confessed that it was him. Eadie was
arrested and charged with murder
- It was common cause that the accused had acted, his act was voluntary,
unlawfulness was present etc. (all the previous elements of the criminal liability
pyramid had been established)
- The accused relied on the defence of temporary non-pathological criminal
incapacity. He argued that although he knew his act was wrongful, at the time of
commission he lacked the ability to act in accordance with his appreciation (due
to the external factor of road rage)

What the courts said:

- The trial court (HC) found him guilty and his defence failed. He then appealed to
the SCA (also found him guilty)

- SCA held:
o The SCA had to use medical experts to assess the merits of the accused’s
defence
o The court ruled that although his capacity was diminished, he did not lack
criminal capacity at the time of the incident
o The court also held that a person can only lack criminal capacity if he acted
involuntarily
▪ In other words, the judge said that non-pathological incapacity due to
emotional stress or provocation is the same as the defence of sane automatism

▪ This lecturer disagrees with this ^ and says it conflates involuntariness with
incapacity

o Road rage, killing a person bc of road rage, and claiming you lacked capacity bc
of road rage will not be tolerated by the courts. Loss of temper does not equate
to criminal incapacity. There must be VERY compelling reasons for a person to
 succeed with this defence
o The accused must establish a factual foundation for this defence. How?-> by
means of expert evidence (X must be assessed by experts having regard to the
factual circumstances of the case)
- This defence still exists in our law (it has not been overturned) but it is
extremely difficult to prove bc of how easily it can be abused

Criticism:
- The court confused the general principles of the criminal law and should
have purely applied the usual evidentiary measures (as was applied in
Moses);
- There is a difference between physiological loss of control over physical
bodily movements (as with involuntariness) and psychological loss (lose
cognition orconation) of control with incapacity.
Nursingh [1995] - In the Nursingh case, the defence of temporary non-pathological criminal
case: incapacity succeeded. This case is older than the Eadie decision (where the
NB IN CLASS defence did not succeed and is resultingly not raised much anymore)

- Facts: The accused (19 years old) lived with his parents in a protective
environment. However, there was an unhealthily close relationship between the
accused and his mother. His mom sexually abused him. On the day in question,
the accused’s friend came to visit as they planned to go out that evening. When
the accused told his mom of their plans, the mom got angry and an altercation
arose. The accused fired shots at the mom and also shot his grandma and
grandpa. The friend came down stairs to see what happened and he saw the
accused standing over the dead bodies. The accused was charged with murder. He
relied on non-pathological incapacity as his defence.

- Experts were called in to assess the accused and his family background and
emotional well-being. It was established that the accused had suffered severe
sexual and emotional abuse from his mom which caused trauma and led to a
psychological breakdown in him. The abuse, trauma, dysfunctional relationship,
family background etc. contributed to the accused’s behaviour on the day in
question. The accused suffered a psychological/mental breakdown but due to
non-pathological causes. He was thus found not guilty.

The court was satisfied that the expert evidence was firm, solid, well-
established, and laid a good foundation for the accused

- This case is different from the Eadie case -> the factual backgrounds are very
different

Youthfulness (non – pathological criminal incapacity)

Tsutso Case: Facts:
LEAVE OUT - T, a child who was almost 10 years old, was with his father, F, and his
father's friend, R.
- F and R got into an argument at a “shebeen” which led to the point that T
 thought that R was going to physically attack F.
- T, trying to protect his father, stabbed and killed R.
- T ran away and hid in a pig sty, but was later found and arrested.

Court Held:
- T was originally convicted of murder.
- The court made a negative inference to the fact that he hid away was
indicative of him being able to distinguish right from wrong.
- However, T may have had the cognitive element but he did not act in the
appreciation of his wrongful conduct.
- Capacity requires that the cognitive and conative element must be
present.
- Eventually T’s conviction was overturned as he lacked conation.
*Pietersen case
Facts:
LEAVE OUT:  P, an 18 year old, used two children between the ages of 10 and 14, Ni and
Ne, to gain access into houses in order for them to burgle.
 P, Ni and Ne were subsequently arrested and charged with housebreaking
with the intent to steal.
 They were all convicted.

Court Held:

- The appeal court held that a rebuttable presumption exists where

younger children commit crimes in the presence of adults as they may be
influenced or coerced by the adults to commit such crimes.
- This means that the children, unless rebutted, lack conation leading to
criminal incapacity.
- Therefore, Ni and Ne were acquitted as they lacked conation.
- Persons between the ages of 14 and 18:
- Such children are considered as having full criminal capacity
- Youthfulness is merely a mitigating factor
Lehnburg - Facts:
LEAVE OUT the accused was 16 years old. She developed an intimate relationship with Mr
van der Linde who was married (to the deceased). The accused wanted his wife
out of the way so she hired someone (Mr C) to go and murder the
wife/deceased. She promised various sexual rewards for doing this. Mr C took
scissors and stabbed the wife 11 times. She died. Mr C admitted to the murder,
was found guilty, and received the death penalty. The accused also received death
penalty in the trial court but she appealed against her conviction and her
sentence. Her appeal against her conviction failed, but her appeal against her
sentenced succeeded

- The appeal court held that -> youthfulness is a factor that should have been
considered because immature age often causes a person to act in a certain way. -
On appeal her sentence changed to 20 years imprisonment (instead of the death
 penalty)
Mentall Illness ( pathological criminal incapacity)
Laubscher - Facts: the accused was charged with murder after he stabbed the deceased.
Evidence revealed that he suffered from Huntington’s disease – this is a strong
LEAVE OUT genetic disease, but this doesn’t necessarily predispose someone to criminal
behavior. The accused tried to rely on the defence of pathological incapacity, but
expert evidence did NOT establish a connection between the mental disease and
the
accused lacking criminal capacity

- The court rejected the accused’s defence and held that if there is no casual
connection between the disorder and the commission of the offence, then
evidence
that X suffers from a disorder is insufficient
- Accused was thus found guilty
- Main point: The mere fact that X suffers from a disorder in the abstract does
not
mean that X will succeed with the defence of pathological incapacity. The
disorder
must be connected to commission of crime
Mental Illness cases
Van Niekerk case (paraphilia + necrophilia). This case deals with the “mad” personality trait and
sexual disorders.
NB IN CLASS
- Facts:
the accused and the deceased were friends, and they would get together on a
regular basis to visit each other. On the day in question, he visited her and they
had
a debate on politics. This debate got heated. During an argument he stabbed her
to
death. After he stabbed her, he had sexual intercourse with her corpse (this is
called necrophilia). He was charged with murder. He was sent for mental
observation. The experts noticed signs of schizophrenia in him as well as
psychopathic tendencies (he was a very aggressive person). H also had a troubled
childhood.

The Court Held:

- The trial court convicted him of murder and ordered the death penalty for him ->
he appealed against this and argued for a lighter sentence

- The court held that his schizophrenia was NOT of such a nature that it deprived
himof capacity NOR was it sufficient enough to be a mitigating factor in
sentencing.
Therefore, his appeal his sentence was dismissed (this was the majority
judgement which prevailed). At the appeal court, 2 of the judges disagreed but
one judge stated that the very nature of the crime proclaims the
madness/mental illness of V. The appeal was upheld and the death sentence was
 changed to life
imprisonment.He was provisionally mad

o Minority judgement held that the bizarre way he committed the crime was
indicative of the fact that he suffered from mental illness (schizophrenia) at
the time of committing the crime. If the minority judgement was upheld, the
accused would have been ‘acquitted but committed’
Kavin Case the SAD cluster ‘C’ AND MAD cluster ‘A

- Manic depressive, very sad and heard voices telling him to kill himself and
his family to be reunited somewhere else. Act inspired by noble content to
him.
- He took his gun and shot his wife and children dead
- He had congnition and could distinguish betwwen right and wrong-
calculated(he told sister to go back to sleep). Failed to shoot himself
- Charged with murder
- Pathilogcal criminal incapacity
- Sent for observation for 30 days and assessed by psychiatrists to assess
your ability.
- Unanimously, they found that Kavin had ability/cognition(distinguish
between right and wrong but lacked ability to act in that way.
- Report came back to court with this, State tried to rebut but failed. Kavin
acquitted but committed

*EG S v Pieterse Dramatic, emotional and erratic: “The bad” + Sexual Disorder
Case
Facts:
VERY NB IN - P was a paedophiliac psychopath.
CLASS - He stopped next to a nine year old, who just came from a public swimming
pool in Kempton Park.
- He told her that her parents had told him to pick her up.
- Next to the highway, he stopped in a mielie field where he viciously
raped her and strangled her with her bathing suit.
- He went home covered in blood and was questioned by friends and family
where all the blood had come from.
- P claimed that he had been in a bar fight (this is typical psychopathic
behaviour; untruthfulness and insincerity=pathological liar).
- P was arrested and charged with murder and rape.
-
Court Held:
- P was sent for observation in terms of section 78.
- The court held that psychopathy is not a mental illness, but rather
antisocial behaviour. Declared psychopath. Court made NB concession:
psychopath will always be capacitated but may be diminished if nexus
between crime and psychopathy then the person will have diminished
capacity and might save him from a life sentence or death sentence.
- Furthermore, psychopathy can only be a mitigating factor when there is a
 link between the psychopathy and the nature of the deed. NB! Thus will
be guilty but diminished responsibility ito s 78
- In casu, the court held that there was no such link. He was convicted and
sentenced to death
- If there is a link between the psychopathy and the nature of the crime,
then it will still lead to conviction but with diminished criminal
responsibility.
- Psychopaths are criminally capacitated however, if there is a link
between the psychopathy and the nature of the crime, there would still
be a conviction of murder but with diminished criminal responsibility
and therefore, a diminished sentence.

- TO NOTE: This case was incorrectly decided according to Prof Carstens: P

was driven by paedophilia and there is clearly a link.
S V KOSZTUR - pg 930-931 the Appellate Division imported Cleckly's list to determine
1988(3) SA 926 psychopathy into SA criminal law.
(A) - Cleckly's list:
 Superficial charm and a good intelligence;
 Absence of delusions and other signs of irrational thinking (very
calculated);
 Absence of neurosis and nervousness;
 Unreliability;
 Untruthfulness and insincerity;
 Lack of remorse or shame;
 Inadequately motivated antisocial behaviour;
 Poor judgment and failure to learn from experience;
 Pathological egocentricity and incapacity for love;
 General poverty in major effective reactions (emotionally blunt);
 Specific loss of insight;
 Unresponsiveness in general interpersonal relations;
 Fantastic and uninviting behaviour with drink or without;
 Suicide often threatened but rarely carried out;
 Manipulative;
 Impersonal sex life which is trivial and poorly integrated;
 Failure to follow life plans.
Statutory Base for Mental Illness
Incapacity to stand trial
: Ramokoka - Both of these cases dealt with the following question:
2006 (2) SACR how many psychiatric reports are required when X is found to be incapable of
57 (W) + Siko standing trial?
2010(2) SACR
406 (ECB - Ramokoka case -> court said at least 2 psychiatric reports are necessary
- Siko case -> court said at least 3 reports are necessary
- Siko is more recent authority than Ramokoka -> so it is better that there are at
least
3 reports on which the court can base its order
Criminal Incapacity at the Time of the Offence
* Olivier [2007] Section 78: criminal capacity at time of the offence (S78 (1))
4 All SA 1029 (C )
o Facts:
LEAVE OUT the deceased (Steven) and his family were vacationing in Plett. The accused
kidnapped their 5-year-old boy (Steven) while he was playing on the beach. The
accused sodomized him and strangled him with a telephone cord. The accused
went to the police station and reported that he murdered the boy. He was charged
with murder. He relied on the defence of pathological incapacity ito sec 78(1). He
was then sent for observation. He claimed that he suffered from multiple
personality / dissociative identity disorder and that his alter ego killed the boy.
The experts had to assess if he lacked capacity at the time of commission. The
accused’s defence was rejected bc his actions clearly indicated premeditation
(they were planned beforehand). He was found guilty (even though he did have
the mental illness)

- Court rejected this defence

- Held: if X relies on multiple personality disorder X ‘s defence will be ito s
78(1) but in the accused’s case it was merely a fabrication and was
accordingly convicted of murder
VERY VERY NB! Facts:
- Kavin charged with three counts of murder and one count of attempted
Kavin Case murder. He suffered from depression. On day in question he killed his
wife, his one daughter and his son and also tried to kill his other
VERY NB IN daughter but failed.
CLASS - Charged with 3 counts and one count of attempted murder- relied on
defence s 78(1)(3) in other words that as result of depression he lacked the
capacity to act in accordance with the appreciation of right and wrong. He
stated that he had wished to kill them all and himself so that they could
be reunited together.
- K raised section 78, falling into the categories of mad and sad.
- Section 78(1) provides that (a) X is unable to distinguish between right
and wrong (cognition) OR (b) that X was unable to act in accordance to
what was right or wrong (conation).
- K had the ability for cognition but as a result of his depression, he could
not help himself
- Sent for observation ito s78(2)- where 3 psychiatrists observed him.
expert evidence present was unanimous = lacked capacity to act in
accordance with appreciation of right and wrong. State failed to contest
so he was found NOT GUILTY and committed to psychiatric facility s
78(6). (acquitted but committed in terms of section 78(6) pending the
decision of a judge in chambers._

Diminished criminal capacity by reason of mental illness or defect that his

capacity to appreciate wrong from right and to act in such accordance was
diminished the court can take such diminished capacity into account for
purposes of sentencing ie. Suffered depression but not so severe but it
diminished his capacity.
Key Note for Study Purposes: