CONDUCT

ACTS AND OMISSIONS

 It is trite that an accused can only be punished for what s/he did, as opposed to
what s/he merely thought – however evil those thoughts might be. Our criminal law
requires, at the very least, some objective physical manifestation of the accused’s
evil state of mind. And while this may take the form of mere words, what is clear is
that evil thoughts alone are not enough to attract liability. While positive conduct
(acts/commissions) are regarded as prima facie (that is, on the face of it/at first
glance - Nghilundwa v Maritz [2020] NAHCMD 409 (4 September 2020)) unlawful,
omissions are regarded as prima facie lawful (Stedall v Aspeling 2018 (2) SA 75
(SCA)).
 In order for an omission to be regarded as unlawful, the prosecution will have to
convince the court that the accused was under a legal duty to act (making their
failure to act (an omission) unlawful. It is helpful to recall that unlawfulness is the
requirement which is excluded by grounds of justification, such as private defence,
necessity, or consent. Where an accused succeeds in establishing a ground of
justification, his/her conduct is (ultimately) regarded as lawful.
Acts cont.

 For commissions (positive conduct), the accused can only raise a ground of
justification to exclude a conclusion that his/her conduct was unlawful.
However, in the case of omissions, an accused has two bases on which to
avoid a conclusion that his/her conduct was unlawful: firstly that s/he was
under no legal duty to act to start with; and additionally, that his/her conduct
was justified in any event.
 For instance, while I may be under a legal duty to control my vicious dog, I
may be justified in setting it on someone who attacks me – if I am entitled to
act in private defence. The test, in our law, for whether a legal duty exists,
is the legal convictions of the community, as informed by the values in the
Constitution.
RECOGNISED LEGAL DUTIES

 Protective relationship: a duty to act may arise by virtue of a protective

relationship. For example, a protective relationship exists which will give rise
to a duty to act in the instance of a father in respect of his drowning child, or a
mother to protect her child against assault (S v B; S v A); or a parent or
guardian to feed his/her child; where a protective relationship with a child is
assumed (that is, not a natural/biological relationship) a legal duty
nevertheless arises to protect the child from harm: R v Chenjere; an employer
is under a duty to protect his/her employees from harm: Silva’s Fishing
Corporation v Maweza.
 See also the Consitutional Court decision in Carmichele v Minister of Safety and
Security for recognition of the possible legal duty owed by police and
prosecution officials to protect women, in particular, from violence; and see
the subsequent Supreme Court of Appeal judgment in Minister of Safety and
Security v Carmichele for the actual recognition of this legal duty.
Duties cont.

 Statute: To file a tax return; report an accident to the police; to not leave the
scene of an accident without rendering assistance to any injured. Legal duties may
also arise out of the Constitution.
 Public Office or Quasi Office: an office bearer who is placed in charge of another
individual becomes duty-bound to protect that individual by virtue of his or her
office.
 Contract: a legal duty to act may arise out of an agreement.
 Prior Conduct (omissio per commissionem): in circumstances in which an
individual has created a potentially dangerous situation s/he incurs a legal duty to
guard against any harm resulting. If I light a fire in an area where the flames may
reach dry grass but I do not guard the fire carefully and I walk off without
extinguishing it, then should the fire spread to a nearby building and incinerate the
building, I will have, by omission, in spite of the legal duty upon me and thus
unlawfully, performed the actus reus of arson.
Duties cont.

 Control of a potentially dangerous thing or animal: Where an individual

assumes such control, s/he is obliged to guard that the dangerous
thing/animal causes no harm: this legal duty arises independently of any prior
conduct.
 Common law duties: duties may exist in the common law such as the duty to
report to the police any treasonable act planned or committed.
 Orders of court also give rise to duties to act, such as: return Y’s property.
SITUATION CRIMES

 One may also be rendered liable ostensibly not by virtue of the commission or
omission of an act, but on the basis of a prohibited situation (also known as a
‘state of affairs’). Examples include the possession of a prohibited substance
or material, or being drunk in public. ‘Ostensibly’, because it would seem be
iniquitous to punish someone who had not voluntarily done anything or
omitted to do something. How then is a situation crime acceptable? On a
closer analysis, it seems that they do not punish prohibited situations alone.
Instead, they seem to punish an accused for some act/ommission that led to
the prohibited situation, or some omission to put an end to such a situation
Thus the accused is punished not for the situation itself, but for an
act/omission that created the situation, or for an omission to terminate a
prohibited situation – both of which, if voluntary, are reconcilable with
general principles.