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FACULTY OF LAW

DEPARTMENT OF CRIMINAL AND PROCEDURAL LAW

SUBJECT CODE: SFR0000

CRIMINAL LAW CLASS NOTES: PART 1: INTRODUCTION TO CRIMINAL LAW AND CRIMINAL LIABILITY IN GENERAL

LECTURER: PROF MURDOCH WATNEY

FIRST SEMESTER 2012

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GENERAL INFORMATION REGARDING THE CRIMINAL LAW COURSE:

Lecturer: Prof Murdoch Watney Office: AR 706 Email address: mwatney@uj.ac.za

Please email me if you have an enquiry.

Consulting hours: ________________________________________________________ Notice board at the faculty: See the notice board for test date venue, consulting hours and any additional information. Your proposed programme for the first semester 2012: Please take note: I work at the same pace in both the Afrikaans and English class. WHICH CHAPTER WILL BE

WEEK:

DISCUSSED? Week 1: 10 Feb Enjoy Valentines day Week 2: 17 Feb Week 3: 24 Feb Week 4: 2 March Week 5: TEST ON 5 MARCH Week 5: 9 March Week 6: 16 March Week 7: 23 March TAKE NOTE: WEDNESDAY, THE 21

MARCH IS A PUBLIC HOLIDAY AND THEREFORE WEDNESDAY

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CLASS CANNOT TAKE PLACE AND THEREFORE NO CLASS ON FRIDAY SINCE I WORK AT THE SAME PACE IN BOTH THE AFRIKAANS AND ENGLISH CLASSES. Week 8 9: 24 March to 9 April: RECESS Week 10: 13 April (Friday, the 13th ) Week 11: 20 April Week 12: 27 April TAKE NOTE: 27 APRIL IS A PUBLIC HOLIDAY AND THEREFORE NO CLASS ON FRIDAY. Week 13: 4 May Week 14: 11 May Week 15: 18 May Week 16: 25 May THE FIRST SEMESTER ENDS ON 25 MAY AND THE STUDY BREAK COMMENCES ON 26 MAY 1 JUNE. EXAM: 2 JUNE (SATURDAY) RECESS Enjoy the autumn recess.

With a fresh look, we can start to recognise the unlimited opportunities that lies all around us. Source unknown Its not what you have, its what you do with what you have that makes all the difference. Source unknown

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CHAPTER 1 INTRODUCTION TO THE COURSE, CRIMINAL LAW1. INTRODUCTION

SET OF FACTS: A loses control of his motor vehicle due to driving under the influence of alcohol. He drives over 3 pedestrians, killing 2 instantly. The prosecutor decides to charge A for common law crime, murder of the 2 deceased and the common law crime, attempted murder of the injured pedestrian. Question: Discuss whether criminal law is applicable to the set of facts.

Chapter 1 will be discussed with reference to the given set of facts.

An accused will be held criminally liable if the conduct of the accused falls within the ambit of the criminal law. To determine cognizance when should the be criminal taken law of will be applicable, aspects the following

regarding criminal law in general: Answer the following questions:

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2.

DEFINITION OF CRIMINAL LAW

Question: Define criminal law? What does criminal law mean? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Criminal law forms part of public law. What does it mean? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Criminal law forms part of the criminal justice system. What does this statement (supposition) mean? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Public law may be divided into material and formal law. Explain how this affects criminal law. Answer: Public into: law divided

Meaning/explanation:

Applicable to:

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Question: Is criminal law applied contextually or acontextually? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 3. TERMINOLOGY RELEVANT TO CRIMINAL LAW

Question: Define a crime. Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Who is the complainant? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Is the complainant and the victim the same person? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Answer: Who is the accused? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Who investigates the crime? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Who decides whether to institute criminal prosecution against the accused? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: What is the purpose of a criminal trial? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: What is the role of the presiding officer? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: With reference to above-mentioned discussion, briefly summarize within the context of criminal law what happens when a crime has allegedly been committed? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 4. DIFFERENCES BETWEEN CRIMINAL LAW AND LAW OF DELICTS

Question: Why do we distinguish between criminal law and law of delicts? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: What is the difference between criminal law and law of delicts? Answer: Criminal law: Law of delicts:

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Question: May criminal law and law of delicts be simultaneously applicable to a set of facts? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 5. SOURCES OF CRIMINAL LAW

Question: Where do you find criminal law? Answer: Criminal law may be found in the following 3 sources: Sources:

Which sources are the main sources?

Characteristics each source:

of

Origin source:

of

the

The sources result in a distinction between 2 types of crime:

Question: How do you read case law?

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Answer:

Study: Snyman Casebook pages 3, 5, 7, 9, 11 and 13.

Question: Explain the role of the Constitution and especially the Bill of Rights regarding the sources? Answer:

Study: Sections 8(1), 9, 10, 11, 12, 14, 35, 36 and 39 of the Constitution.

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Is the Bill of Rights (chapter 2 of the Constitution) applied vertically or horizontally in respect of criminal law? Motivate your answer. Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: You look at the opinions of academic authors regarding aspects of the criminal law. Why do you look at the opinions of academic authors regarding aspects of the criminal law as a source of the criminal law?

Please take note: The 2 academic authors are Snyman Criminal Law 5th edition (2008) and Burchell South African Criminal Law and Procedure 4de edition (2011).

Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 6. RELEVANCE OF STUDYING CRIMINAL LAW

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Question: Why do you study criminal law? Does criminal law not only affect the complainant and the accused? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Why will a state which does not have a strong criminal justice system experience for example anarchy etc.? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 7. AMBIT OF THE CRIMINAL LAW COURSE MATERIAL

Question: What will be discussed in the criminal law course? Answer: Criminal law is a year course and is subdivided into 2 parts as follows: Semester: What will be First semester: part 1 Second semester: part 2

discussed?

What

is

the

relevance (importance) of the discussion?

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Please take note: You will be provided with the study guide: part 2 at the beginning of the second semester.

8.

STUDY Study: Snyman Casebook pages 3, 5, 7, 9, 11 and 13 regarding the question: how do you read case law? Sections 8(1), 9, 10, 11, 12, 14, 35, 36 and 39 of the Constitution. The class notes are the primary source.

You supplement the class notes with the information in the study guide. The relevant information in the Snyman Handbook was discussed in class and therefore you do not have to consult it.

9.

EVALUATION See if you can answer the questions posed in your study guide.

See your study guide: par. 8: evaluation for questions that you may use for self-evaluation.

Additional questions: Do you agree with the following statement in respect of the application of the criminal law as part of the criminal justice system? Motivate your answer. It is hard to find a place anymore where the law will ignore you while you blatantly ignore the law. (Source: von Drehle D The Sins of the Fathers 2008 The Times 35.)

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Can you answer the questions in this cartoon?

14 Who is the victim/ complainant?

Who is the accused? Does human rights/ Constitutiona l right play a role in criminal law? Motivate your answer.

Who investigates the case? Who decides whether the accused should be prosecuted What must ? the prosecutor prove during the trial? Which burden of proof must be applied?

Who is the presiding officer? What is the role of the presiding officer during the Explain the role of the accused during trial?

DISCUSSION OF THE 5 ELEMENTS/REQUIREMENTS FOR CRIMINAL LIABILITY IN GENERAL:

An accused will be criminally liable for a crime if the conduct of the accused complies with the following 5 elements/requirements and the principles underlying the elements:

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CHAPTER 2 PRINCIPLE OF LEGALITY1. INTRODUCTION

SET OF FACTS: A has been writing a book over a period of 2 years. He prints the book. B sees the hard copy, takes it and presents it to the publisher as if he is the author of the book. A lays a charge for the common law crime, theft of information. Question 1: Does the conduct constitute a crime in terms of the legality principle? Question 2: Assume the court extends the definition of the common law crime, theft to include information, may the accused be found guilty in accordance with the components of the legality principle?

2.

Chapter 2 will be discussed with reference to the given set of facts. DISCUSSION OF LEGALITY An accused will be criminally liable if the conduct constitutes a crime in terms of the legality principle. To determine whether there was compliance with the legality principle, cognizance must be taken of the components of the legality principle.

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A.

Answer the following questions: Discussion of the meaning of the element, legality

Question: Define the principle of legality. Refer to the Francis case (page 20). Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ B. Discussion of the components of the legality principle

Question: The legality principle consists of components that must be complied with. Give the components (requirements) of the legality principle/when will the legality principle be applicable?

Please take note: The term elements or requirements of the legality principle instead of components could be used, but dont confuse it with the 5 elements for criminal liability.

Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Above-given components are endorsed in sections 35 (3)(l) - 35(3)(n) of the Constitution.

Question: Apply above-given components of the principle of legality to the court case, S v Masiya (page 25).

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Answer: Legal questions: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Facts of the case: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Jugdment regarding the legal question: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Discuss which criticism may be levelled against the Masiya case and whether the criticism is justifiable or not?

Relevant (l) (m).

in

your

answer

are

the

following

sections

in

the

Constitution: sections 8(3) and 39(2) and its impact on sections 35(3) Answer: Two academic authors have opposing views: Snyman: i. i. Burchell:

ii.

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ii.

Question: Whose opinion do you support? Motivate your answer. Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Why is the Masiya case relevant taking into account that since 2007 rape and other sexual offences are now governed by legislation? Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________________

Question: IN CONCLUSION REGARDING REQUIREMENT OF THE LEGALITY PRINCIPLE: Why is the legality principle the FIRST requirement that must be complied with to establish criminal liability for a crime? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 3. STUDY

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Study: Sections 8(3) en 39(2) read with sections 35(3)(l) (m) of the Constitution. Although the case law, Francis and Masiya, were discussed in class, I suggest you still read the case law.

4.

EVALUATION See the study guide for questions that serve as self-evaluation. You must be able to identify in a set of facts the relevant element for criminal liability in general, for example legality and whether the conduct constitutes a crime in terms of the legality principle.

Additional questions: A is charged for a statutory offence. The legislation provides for a statutory crime but punishment is not prescribed. The defence of A argues that the accused cannot be convicted for a crime because there is no punishment prescribed and therefore a conviction would constitute a contravention of the legality principle. Discuss whether the defence will be successful?

Regarding the cartoon, answer the following question: Does the Constitution guarantee the accused a right to a fair trial?

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An accused is entitled to a fair trial in accordance with section 35 of the Constitution which guarantees various rights such as the right to be informed of the charge with sufficient detail to answer to it, the right to a public trial and the right to be presumed innocent, to adduce and challenge evidence.

An engineer dies and goes to hell but hes unhappy at the level of discomfort and designs some improvements. After a few days, there are toilets, air conditioners and lifts. So hows it going down there in Hell? God asks Satan over the phone. Great. Satan says. Weve got air conditioners, toilets and lifts. Nobody knows what this engineer is going to come up with next. What? God asks. Youve got an engineer? Thats a mistake, he shouldnt have come there. Send him to heaven. No ways, Satan replies. Im keeping him. Send him back up here now or Ill sue! God threatens. Yeah, right Satan laughs. And where are you going to get a lawyer? Source unknown

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CHAPTER 3 CONDUCT1. INTRODUCTION

SET OF FACTS: A shot B in the leg. The wound was not fatal, but B required hospital treatment. B died and A is charged for the common law crime, murder. Question: Will A be found guilty of the murder? Discuss the conduct of A for criminal liability.

2.

Chapter 3 will be discussed with reference to the given set of facts. DISCUSSION OF CONDUCT An accused will be criminally liable for a crime if there was conduct. To determine whether there was conduct for criminal liability, the conduct element must comply with requirements or components.

A.

Answer the following questions: Discussion of the element, conduct

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Question: Before the requirements for the conduct element may be discussed, a distinction must be drawn between 2 categories of crime, namely conduct/circumstance/formally defined and consequence/result/materially defined crimes. Define the 2 categories of crime and indicate why a distinction must be drawn between the 2 categories of crime before the discussion of the requirements of the conduct element may commence? Answer: i.

The 2 categories of crime are defined as follows: Conduct/circumstance/formally defined crime:

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ii. Consequence/result/materially defined crime: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Why must a distinction be drawn between the 2 categories of crime before the requirements of the conduct element can be discussed? i. Conduct/circumstance crime/formally defined crimes: ii. Result/consequence crimes/materially defined crimes: of The conduct element of defined

The

conduct

element defined

conduct/formally

crimes consequence/materially

must comply with 3 requirements for crimes must comply with 4 requirements criminal liability. The requirements of the for criminal liability. The requirements of the conduct element conduct/formally conduct crimes are: element for defined defined crimes are: consequence/materially

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A.

Discussion of the requirements for the conduct element Regarding the 1st requirement of the conduct element: human conduct: applicable to conduct and consequence crimes:

1.

Question: What is meant with human conduct? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 2. Regarding the 2nd requirement of the conduct element: voluntary conduct: applicable to conduct and consequence crimes Question: What is meant with voluntary conduct? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: If conduct is involuntary, the accused cannot be held criminally liable. Explain involuntary conduct. Answer: Regarding involuntary conduct, a distinction is drawn betweena) b)

automatism, and force.

Regarding a) automatism: Question: Define automatism. Answer:

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___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Regarding automatism a distinction is drawn between sane/non-pathological and insane/pathological automatism. Why is this distinction relevant? Answer: Non-pathological/sane automatism: Pathological/insane automatism:

e.g. conduct during a black-out, concussion, e.g. conduct as a result of a mental illness low blood sugar, intoxication, epilepsy, such as schizophrenia. during sleep.

Study the following case law: Dhlamini (page 43), Trickett (page 45), Henry (page 48) and; Chretien (page 138). Please take note: Intoxication affects the following elements for criminal liability, namely conduct, criminal capacity and fault, specifically intention. The focus here is only on of of the the the voluntary element discussion

conduct element.

See

the

Chretien case hereafter. Burden of proof: Burden of proof:

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Consequence if the state cannot discharge the Consequence if the accused discharged the burden of proof: burden of proof:

Please take note: You will look at non-pathological and pathological incapacity at chapter 5: criminal capacity. It may also be relevant at chapter 6: intent.

Question: Very briefly discuss the Chretien case regarding the effect of intoxication induced by alcohol or drugs on the conduct element. Please take note: You will look at intoxication again at chapter 5: criminal capacity and chapter 6: intent. Answer: Legal question: ___________________________________________________________________________ __________________________________________________________________________ Facts of the case: ___________________________________________________________________________ __________________________________________________________________________ Judgment regarding the legal question: ___________________________________________________________________________ __________________________________________________________________________ Consequence of the judgment:

Section 1 of the Criminal Amendment Act 1 of 1988.

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Please take note: This act will be discussed fully at chapter 5: criminal capacity.

___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: If A shot B while under the influence of drugs, would it affect As criminal liability? Answer: ___________________________________________________________________________ __________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________________ Regarding b) force: Question: A distinction is drawn between absolute force (vis absoluta) and relative force (vis compulsiva). Why is a distinction drawn and how does it affect criminal liability? Answer: Absolute force: Relative force:

3.

Regarding

the

3rd

requirement

of

the

conduct

element:

the

requirement, conduct of the conduct element applicable to conduct and consequence crimes:

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Question: What does the conduct requirement mean? Answer: Conduct consists of: i.__________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________________ OR ii._________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: In the South African law, similar to its Anglo-American counterpart, there exists no general duty to intervene. Why is there no general legal duty to act in common law? Answer: a._________________________________________________________________________ ___________________________________________________________________________ b._________________________________________________________________________ ___________________________________________________________________________ Question: There are 8 exceptions when a person does have a legal duty to act. When will one have a legal duty to act? Answer:

Study the following: Ewels (page 52); Gaba (page 55), and; Snyman Handbook pages 59 60 regarding the 8 situations when a person has a legal duty to act and failure to act positively (omission) will result in criminal liability.

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

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Question: A situation which does not fall under the 8 categories may nevertheless qualify as a case where there is a legal duty to act positively because the legal convictions of society demands it. Should the courts apply the concept of the legal convictions of the community in order to expand the legal duty to act? Refer to the opinions of academic authors such as Snyman and Burchell. Which opinion do you support? Answer:

Snyman:

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Burchell:

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Which opinion do you support? Motivate your answer. Answer: ___________________________________________________________________________ ___________________________________________________________________________

Regarding the set of facts:

Question: Assume C saw B being shot, does C have a legal duty to assist B, for example by giving medical assistance or phoning for an ambulance or the police? Would Cs failure to act result in criminal liability? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 4.

Regarding the 4th requirement of the conduct element: causation: applicable only to consequence/materially defined crimes. Please take note: consequence/result/materially defined crimes must comply with the above-discussed 3 requirements as well as an additional requirement, namely that there

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must be a causal link between the conduct and the unlawful consequence as a result of the conduct.

Study the following case law: Daniels (page 60), see the discussion of the Daniels case hereafter; Mokgethi (page 71), and; Tembani (page 79).

Question: Give the meaning of the causation requirement for the conduct element in respect of result crime. Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: To determine causation between conduct and the prohibited consequence, a 2 phase investigative process is used. Discuss the 2 phase investigative process to determine a causal link between the conduct and the consequence. Answer: The 2 phase investigative process consists of establishing factual and legal causation.I.

First (a preliminary) enquiry: Establish FACTUAL CAUSATION (conditio sine qua non test) by asking: What would have happened if As conduct had not taken place, would the result nevertheless have ensued, the so-called but for test?

Question: Explain factual causation. Answer: Explanation of factual causation with reference to the following examples:

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Example 1: A gives B poison which is very slow to take effect and before the poison takes effect, B has a heart attack and dies of natural causes. Question: Is there factual causation between As conduct and Bs death? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Example 2: A shoots B in the shoulder and on the way to the hospital, the ambulance doors open and B ends up in the road and is killed by a truck. Question: Is there factual causation between As conduct and Bs death? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Is the first enquiry, factual causation the only enquiry the court applies? Answer: ___________________________________________________________________________ ___________________________________________________________________________ +II.

Second enquiry: Establish LEGAL CAUSATION by looking at policy issues and asking: Is it reasonable or just or fair to regard the conduct of A as the cause of the forbidden situation of B?

Question: Give the tests or theories of legal causation that may be applied to determine the policy limits? Answer:

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There are 4 tests or theories, namelyi. ii. iii. iv.

novus actus interveniens test/theory; the adequate cause test/theory; proximate cause test/theory, also referred to as the individualisation theory; and a combination test/theory.

Question: Discuss each theory/test of legal causation. Refer in your answer to case law; which legal causation test/theory does academic authors, namely Snyman and Burchell favour, and which theory do the courts mostly apply? Answer:i.

Actus novus interveniens How is the actus novus interveniens test/theory applied? By asking: was there a new unsuspected or unusual or abnormal intervening (subsequent) event that served to break the chain of causation between the conduct and the result?

This new act is a completely independent act that has nothing to do with the conduct of A and bears no relationship with the conduct of A. When will an event be abnormal/unusual/unsuspecting? The new subsequent act, according to general human experience, deviates from the ordinary course of events and cannot be regarded as a probable result of As conduct.

Apply the actus novus interveniens to the following examples:

Example 1: During a robbery a policeman tries to apprehend the robbers by firing shots with the consequence that the policeman kills a bystander. Question: Did the policemans conduct break the causal link between the conduct of the robbers and the death of the bystander? Answer: ___________________________________________________________________________ __________________________________________________________________________ Example 2: A hits victim, B with a stone which is not a fatal wound. C stabs the victim, B. The stab wound results in a fatal wound.

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Question: Did Cs stab wound break the causal link between the conduct and the consequence? Answer: ___________________________________________________________________________ __________________________________________________________________________ Question: What happens if after being stabbed, B is taken to hospital for a blood transfusion which he refuses on religious grounds and as a result dies? Does his refusal constitute an actus novus interveniens? Answer: ___________________________________________________________________________ __________________________________________________________________________

The accused takes the victim as he finds him and therefore the physiological condition of the victim namely weak heart or thin skull cannot be considered as an event that will exclude legal causation. The so called thin-skull rule means that the accused cannot use the particular physiological condition to try to escape liability.

ii.

Adequate cause test/theory: How is the adequate test applied? By determining whether an act, according to human experience, would in the normal course of events, have resulted in the prohibited consequence.

A consequence/result is not regarded as causally related to a preceding act if it arose in an unusual or unexpected way. Snyman: the actus novus interveniens is a negative test: was it not for the abnormal happening, then A would have been guilty? Snyman favours the adequate causation test. The test/theory originates from the European law. Does the court apply the adequate causation test? Although the court have not indicated that they accept the adequate theory, Snyman reads it into the Daniels case but Jansen J never directly called it the adequate test. Snyman also says Mokgethi compatible with the adequate test.

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iii.

Proximate cause test/theory, also referred to as the individualisation theory The proximate test (or proximate theory of legal causation) means that one must look for the ONE single individual cause that resulted in the prohibited situation for example 3 people together decide to kill someone, only 1 accused may be held liable? The latter is incompatible with the principle of common purpose which will be discussed at part 2 in the second semester.

The proximate test was rejected in the Daniels case. Combination test/theory. What is the combination test/theory of legal causation? It is a broad, general test/theory based on a variety of tests and/or public (legal) policy factors or considerations. In the Mokgethi case the judge did not use above-given tests, but applied a general, supple test taking into consideration various policy factors. The tests were used as policy factors to determine whether there was a sufficiently close connection between the accused conduct and the unlawful consequence. Burchell is of the opinion that no single test of legal causation provides all the answers and a combination (composite) test achieves the same purpose as a single test, namely to limit the first enquiry, factual causation.

iv.

A flexible test reconciles the different tests that have in the past been used/suggested to solve legal causation.

Snyman favours a single test and argues against using a combination test since it is too vague and does not provide legal certainty, furthermore it may result in the court relying on its intuition in deciding whether a particular act or event is legally the cause of a situation.

Question: In summary regarding the 4th requirement, causation, how do the courts apply the 4th requirement regarding consequence crimes? Answer: SA courts all agree that there must be a 2 phase investigation process: namely factual and legal causation regarding result crimes. However, there is uncertainty regarding the test that the court must use for legal causation

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The actus novus interveniens test has mostly been used by the courts although in the Mokgethi case we see a move towards a general, flexible test (combination test using different policy factors).

The common objective of all the tests in respect of legal causation is to limit the scope of factual causation on the grounds of public (legal) policy. Please take note: Mistake regarding causation/chain of events will again be discussed at chapter 6: intent.

Question: What is your opinion regarding the tests? Which test do you favour? Motivate your answer: Answer: ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: If A never intended to shoot B, but the bullet went astray and hit B, would this exclude causation? Answer: ___________________________________________________________________________ ___________________________________________________________________________

Please take note: Aberratio ictus (means the going astray or missing of a blow) does not exclude causation, e.g. A fires a shot at B but the bullet ricochets and strikes C. (See chapter 6: fault/culpability: aberratio ictus may be tendered as a defence that may exclude intention.)

Question: Discuss the Daniels case. Answer: Legal question: ___________________________________________________________________________ __________________________________________________________________________ ___________________________________________________________________________

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Facts of the case: __________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Judgment regarding the legal question: __________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: May A be held criminally liable for her death if she died due to negligent medical treatment and not of the bullet wound? Answer: ___________________________________________________________________________ __________________________________________________________________________

Question: IN CONCLUSION REGARDING THE CONDUCT ELEMENT: Why is the conduct element for criminal liability the SECOND element for criminal liability? Answer: ___________________________________________________________________________ __________________________________________________________________________ 3. STUDY Study: Snyman Handbook, pages 59 60 regarding the 8 exceptions when a person has a legal duty to act and where the failure to act positive will result in criminal liability; and

The case law in the Snyman Casebook. EVALUATION

4

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Do the questions in the study guide. You must be able to identify in a set of facts the relevant element for criminal liability in general, for example automatism or force and the affect it would have on the conduct element.

Here follows additional sets of fact and questions:

Set of facts 1: A suffers from diabetes. He has previously suffered blackouts due to hyperglycemia and had been placed on medication which he normally takes three times per day. He fails to take his insulin for a whole day and during the evening, while driving he suffers from a blackout. He loses control of his car and crashes into a pedestrian, B, who is on the pavement. B dies. A is charged for the crime, murder. Regarding the given set of facts, discuss the criminal liability of A with reference to the following questions:1) 2)

Which category of crime was committed? Give the requirements that conduct must comply with before A will be held criminally liable. Will A be held criminally liable for the death of B? Assume B dies at the scene of the accident. Would your above-given answer be different if B was rushed to hospital where she refused a blood transfusion due to her religious beliefs even though it would probably have saved her life? According to the post mortem report she died of blood loss.

3)

4)

Set of facts 2: A allows a teenager, B to drive her car. The teenager does not have a drivers license (not even a learners). While A is talking on her cell phone (mobile phone), the teenager collides with a cyclist which results in the

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death of the cyclist. A is charged with the common law crime, culpable homicide. Answer the following questions:a)

Give the general elements that must be complied with for criminal liability. Is A guilty of a crime? Motivate your answer with reference to the elements of a crime in general. If A was intoxicated when she allowed the teenager to drive her car, will this affect your above-given answer? Assume the breaks of the vehicle failed, would this affect criminal liability? Would the break failure qualify as an aberratio ictus? Motivate your answer.

b)

c)

d)

e)

Assume that the cyclist was injured and taken to hospital. In hospital he gets septicaemia and dies. Discuss causation fully with reference to case law.

f)

Assume the cyclist cycled without a helmet, will this affect the criminal liability of A? Assume a bystander, C, saw the victim lying in the road. Assume that the passengers in the car sped away. C does not phone for assistance or try to help the victim. Was there a legal duty on C to act positively by giving assistance to the cyclist?

g)

h)

If the teenager was so shocked by the accident that she tries to commit suicide, does one have a legal duty to prevent the person from committing suicide?

Discuss the following statement: Law should encourage citizens to do the right thing in a moral sense and not to turn a blind eye.

Regarding the following cartoon, may the owner of the bear be prosecuted if the owner trained the bear to kill people? Motivate your answer.

38Graeme D in the handbook, Lies, damned lies and history (2009) on page 57 refers to Germany where in 1499 a bear was arrested for causing affray and terrorizing several villages on the fringe of the Black Forest. The bear was put on trial but the defense lawyer insisted that Article 39 of the Magna Carta be applied: the bear had the right to a jury of its peers. The judge and it may sound ridiculous today then ordered the rounding up of a jury of local dancing and performing bears to act as a jury. Needless to say that once the bears (the jury) entered the court, there was pandemonium resulting in the accused bear successfully escaping.

Regarding the following cartoon, answer the following question: Discuss whether there is a legal duty to assist the drowning person and whether the person will be criminally liable for not assiting the drowing person?

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CHAPTER 4 UNLAWFULNESS1. INTRODUCTION SET OF FACTS: A is awoken at night by an intruder. He takes his gun, walks down the passage of his house, sees the intruder and shoots the intruder killing the intruder instantly. A is charged for the common law crime, murder. A pleads not guilty and tenders private defence as a ground of justification to exclude unlawfulness of the conduct. Question: Will the defence of A be successful?

Chapter 4 will be discussed with reference to various set of facts and not only the given set of facts.

2.

DISCUSSION OF UNLAWFULNESS

An accused will be criminally liable if his or her conduct is unlawful, in other words:

The conduct is against the common or statutory law; and There is no ground of justification or defence to exclude the unlawfulness of the conduct.

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A.

Answer the following questions: Discussion of the meaning of the element,

unlawfulness Question: What does unlawfulness mean? Answer: An act is unlawful if it complies with the following 2 requirements: i.__________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________________

Study regarding unlawfulness in general: Fourie case (page 88).

Question: What is a ground for justification or a defence? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Who must prove unlawfulness of the conduct? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: Was the conduct of A unlawful? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ B. Discussion of the defences or grounds of justification that may exclude unlawfulness Question: Give the defences or grounds of justification that may exclude lawfulness. Answer: The following grounds of justification will be discussed: 1. 2. 3. 4. 5. 6. 7. 8. 9. Private defence (preferable to self-defence) Defence of necessity; Defence of impossibility; Defence of obedience to superior orders; Defence of official capacity/public authority; Defence of chastisement; Defence of consent (volenti non fit iniuria); Defence of entrapment; and Defence of trifling nature (de minimis). Please take note: Although you look at 9 grounds of justification or defences, the courts have recognized 7 of them as grounds of justification.

There are no numerus clauses (limited number of) grounds of justification. Where conduct falls outside the recognised grounds of

justification, the legal convictions of society or boni mores will be used as a general criterion to establish whether the conduct excludes unlawfulness or not. Each ground of justification has its own requirements.

Each justification ground has limits and if an act exceeds these limits, it is unlawful.

Some of these grounds of justification in respect of unlawfulness will be referred to at chapter 6: defences that may exclude intention.

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HERE FOLLOWS A DISCUSSION OF EACH OF THE ABOVE-MENTIONED GROUNDS OF JUSTIFICATION OR DEFENCES: Please take note: Each justification ground or defence will be discussed with reference to a given set of facts.1.

DEFENCE OF PRIVATE DEFENCE (OR SELF-DEFENCE) Study the following case law: R v Patel (page 92), In Re S v Van Wyk (page 95), S v Mogohlwane (page 106), and; S v Dougherty 2003 (2) SACR 36 (W) (discussed in your class notes). SET OF FACTS: (given at par 1. Introduction)

A is awoken at night by an intruder. He takes his gun, walks down the passage of his house, sees the intruder and shoots the intruder killing him instantly. A is prosecuted for the common law crime, murder. A pleads not guilty and raises private defence as a ground of justification to exclude unlawfulness. Question: Will the court accept that the conduct of A excludes unlawfulness? Question: Define private defence. Answer:

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Study: S v Mogohlwane (page 106).

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Before the requirements for private defence are discussed, indicate which test is used to establish whether the accused acted in private defence. Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Give the 3 requirements that the ATTACK must comply with. Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ Question: Give the 3 requirements that the DEFENCE must comply with. Answer: For private-defence: there must be evidence that: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________

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___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ Question: May an accused use deadly force to protect property? Answer:

Study: In Re S van Wyk (page 95).

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Question: What is the position where the attacked person exceeded the limits of private defence? Answer:

Study: R v Patel (page 92); and S v Dougherty 2003 (2) SACR 36 (W) hereafter; class notes are sufficient.

___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Answer:

Does

the

justification

ground,

private

defence

amount

to

self-

justification/vengeance? Take note of the following case: S v Dougherty 2003 (2) SACR 36 (W); the class notes are sufficient.

Legal question:

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___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Facts of the case: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Judgment regarding the legal question: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Opinions of academic authors: Snyman: ___________________________________________________________________________ Burchell: ___________________________________________________________________________ Question: Regarding the facts in the Dougherty case, what is your opinion? Did the conduct of the accused comply with the requirements and the test for private defence? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: Will the accused (A) be successful in using private defence to exclude the unlawfulness of his conduct? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: If it transpires that the intruder was not armed and that he was shot in the back indicating that he was fleeing the scene, would the accused be successful with his defence or did he exceed the limits?

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Answer: ___________________________________________________________________________ _____________________________________________________________ 2.

DEFENCE OF NECESSITY Study the following case law: S v Goliath (page 111), and; S v Pretorius (page 119). SET OF FACTS:

A and B are shipwrecked and on a life boat. A realizes that if he is to survive, he needs food. He kills B and eats B. A is charged for murder of B. A says that due to the shipwreck, he acted out of necessity and therefor his conduct was not unlawful. Question: Will A be acquitted on the defence of necessity? Question: Define necessity. Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: The 2 grounds of justification, necessity and private justification are closely related to each other. In both cases the accused protects interests which are of value to the accused, such as life, bodily integrity and property, against threatening danger. What is the difference between necessity and private defence? Answer:

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i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ Question: Discuss the 6 requirements for raising the defence of necessity successfully. Answer:

Study: Pretorius (page 119).

Evidence must be presented that: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _iv.________________________________________________________________________ _ ___________________________________________________________________________ v._________________________________________________________________________ ___________________________________________________________________________ vi._________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: May a person kill another to escape the situation of emergency? Answer:

Study: S v Goliath (page 111); Sections 9 and 11 of the Constitution.

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___________________________________________________________________________ ___________________________________________________________________________ ______________________________________________________ 3.

DEFENCE OF IMPOSSIBILITY Study the following case law: Canestra (page 57), and Leeuw (page 58). SET OF FACTS:

A is a fisherman. A was charged in contravention of legislation that he caught under-sized fish. A alleges that it was impossible not to catch undersized fish. Question: Will As defence of impossibility succeed? Question: What are the requirements for raising the defence of impossibility? Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ Question: Is impossibility a justification ground that may exclude unlawfulness or does it form part of the second element of criminal liability, namely conduct? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ ______________________________________________________ Regarding the set of facts:

Question: Will the defence succeed? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 4. DEFENCE OF OBEDIENCE BY A SUBORDINATE POLICE

OFFICIAL/SOLDIER TO SUPERIOR ORDERS

Study: S v Mostert (page 128). SET OF FACTS:

A, an officer, gives a soldier or police official, B, an order to assault C. Question: May B allege that as a subordinate he had to obey the order of a superior? Question: Why does this defence exist? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: Which requirements must be complied with if a soldier or police accused (subordinate) wants to successfully raise this defence?

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i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ Regarding the set of facts:

Question: Will the defence succeed? Answer: ___________________________________________________________________________ __________________________________________________________________________ 5.

DEFENCE OF OFFICIAL CAPACITY/PUBLIC AUTHORITY Study: S v Fourie (page 88), and Sections 8(1), 9 and 36 of the Constitution. SET OF FACTS:

A public official exceeds the speed limit on his way to an important meeting. His defence is that he had to carry out official duties and therefore cannot be held criminally liable. Question: Will the accused defence succeed? Question: What does this defence mean? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ Question: Who may rely on this defence? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: Will the accuseds defence succeed? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 6.

DEFENCE OF DISCIPLINARY CHASTISEMENT Study: Sections 8(1), 9, 10, 12, 28(2)(d) and 36 of the Constitution. SET OF FACTS:

Before the mother visits the shop, she gives her child a hiding as a warning to behave in the shops. She threatens that if the child does not behave, she will give him a more severe hiding when she gets home. A charge of assault is laid against the mother. The mother uses the defence of disciplinary chastisement as a defence to exclude unlawfulness. Question: Will the defence succeed? Question: What is the legal position regarding this defence? Take note of the Constitution.

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Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: Was the mothers conduct unlawful? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 7.

DEFENCE OF CONSENT (VOLENTI NON FIT INIURIA) Study: S v R (page 123), the specific crime, rape will be discussed at part 2; and S v Collett (page 125). SET OF FACTS:

During a rugby match, A is injured in the scrum. A believes that B targeted him in the scrum and applied undue pressure on his back with a result that his back was injured and he now suffers from back problems. A institutes a civil claim against the rugby union and lays a criminal charge (of assault) to do grievous bodily harm (GBH) against B (member of the opposing rugby team). B states that A consented to the injury during the rugby match and therefore Bs conduct was not unlawful. Question: Will the defence succeed?

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Question: What does the defence, consent, mean? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ____________________________________________________________________ Question: What are the requirements for a defence of consent? Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ Regarding the set of facts:

Question: Was the accused conduct unlawful? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 8. DEFENCE OF ENTRAPMENT SET OF FACTS: A approaches B and offers to sell drugs to him. The moment B hands over the money and accepts the drugs, A arrests him. It transpires A is working as an undercover policeman trying to eradicate drug abuse. In court B alleges that he cannot be guilty of the statutory crime, possession of drugs since he bought the drugs as a result of entrapment.

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Question: Will the defence succeed? Question: Explain the legal position regarding entrapment as a ground of justification ground. Answer: ___________________________________________________________________________ __________________________________________________________________________ Regarding the set of facts:

Question: Was the accused conduct unlawful? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 9. DEFENCE OF TRIFLING NATURE OF AN ACT (DE MINIMUS) SET OF FACTS: A is arrested for stealing stationary worth R25 at his workplace. He alleges that the theft was so trifle that he cannot be convicted. Question: Will the defence succeed?

Question: Explain the legal position regarding the trifling nature of the act as a ground of justification. Answer: ___________________________________________________________________________ __________________________________________________________________________

Regarding the set of facts:

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Question: Was the accuseds conduct unlawful? Answer: ___________________________________________________________________________ ___________________________________________________________________________

Question: IN CONCLUSION REGARDING THE UNLAWFULNESS ELEMENT: Why is the unlawfulness element for criminal liability the THIRD element for criminal liability? Answer: ___________________________________________________________________________ __________________________________________________________________________ 3. STUDY Study: The case law in the Snyman Casebook; and The relevant sections in the Constitution. EVALUATION Do the questions in the study guide. You must be able to identify in a set of facts the relevant element for criminal liability in general, for example may a defence of impossibility be raised to exclude the element, unlawfulness?

4

Additional questions: Regarding the cartoon: If the accused (woman) is prosecuted for the common law crime, assault, do you think there is a defence that she may raise regarding her conduct?

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Is the criminal law or civil law applicable or are both applicable? What is the significance of drawing this distinction?

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CHAPTER 5 CRIMINAL CAPACITY1. INTRODUCTION SET OF FACTS: The accused had a terrible day at work. He leaves the workplace extremely irritated. After work, he shares a few drinks with his fellow colleagues who commiserate with him. On his way home, a taxi driver swerves in front of him. The accused is very annoyed, races after the taxi and forces it off the road. The taxi driver loses control and drives into a tree with the result that 3 passengers die instantly and 2 are seriously injured. The accused is charged for the common law crime, murder of the 2 deceased. Question 1: The accused pleads not guilty due to extreme emotional stress. As a result of non-pathological incapacity the accused alleges he snapped after the taxi driver swerved in front of him. Will the defence succeed? Question 2: The accused alleges that he was using steroids. One of the side effects of the use is extreme anger outbursts. Did this affect criminal capacity? Question 3:

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May the accused allege that the taxi driver had such poor driving skills that his conduct served to break the causal link between the conduct of the accused and the prohibited consequence? Question 4: May the accused use sane automatism as a defence?

Chapter 5 will be discussed with reference to various set of facts and not only the given set of facts.

2.

DISCUSSION OF CRIMINAL CAPACITY

An accused will be criminally liable if he/she had criminal capacity. To determine whether the accused complied with the criminal capacity element at the time of the commission of the crime, there must be an enquiry to establish whether there is not a factor that may exclude criminal capacity A.

Answer the following questions: Discussion of the meaning of the element, criminal capacity

Question: How is criminal capacity established? Answer: The court must hold an ENQUIRY to establish whether the accused had the following 2 components of mental capacity/function: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________

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Please take note: The test applied to establish the components of criminal capacity regarding the factors that may affect criminal capacity will be discussed hereafter.

Question: Why should there be an enquiry to establish whether an accused person has criminal capacity? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: Who must prove criminal capacity? Answer: ___________________________________________________________________________ ___________________________________________________________________________

Please take note: The defence of pathological incapacity may be an exception to the general rule.

A.

Discussion of the factors that may exclude criminal capacity

Question: Which factors may affect criminal capacity? Answer:1.

Youth; Mental illness, also referred to as pathological incapacity; Intoxication; and Provocation and emotional stress so-called non-pathological criminal incapacity.

2. 3.4.

HERE FOLLOWS A DISCUSSION OF EACH OF THE ABOVE-MENTIONED FACTORS THAT MAY EXCLUDE CRIMINAL CAPACITY: Please take note: The factors that may exclude the criminal capacity element will be discussed with reference to a given set of facts.

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1.

YOUTH/CHILD SET OF FACTS:

Three accused were convicted in the magistrates court of the common law crime, housebreaking with the intent to steal and theft. The 3 accused were respectively 18, 9 and 12 years old. Question: The question on review was whether the magistrate was correct in assuming the 3 young offenders had criminal capacity. Question: What is the position of youthfulness in respect of criminal capacity? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Question: Which test is applied to establish criminal capacity regarding youthfulness?

Take note of the legal position regarding the application of the criminal capacity enquiry in respect of intoxication and nonpathological incapacity.

Answer: ___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: Did the accused have criminal capacity? Answer: ___________________________________________________________________________ ___________________________________________________________________________ 1. PATHOLOGICAL INCAPACITY

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Please take note: Pathological automatism was discussed at chapter 3: conduct and may exclude the conduct element for criminal liability. SET OF FACTS:

The accused saw himself as a saviour of the immoral world. He felt that his neighbours were immoral and that despite his admonishments, they ignored him. He opens fire on 2 of the neighbours in an attempt to save them from moral decay. He is charged with the common law crime, murder. The defence of the accused raise his mental condition, schizophrenia as a factor to exclude criminal capacity. Question: Will his mental condition exclude criminal capacity? Question: Why does pathological incapacity (mental illness) exclude criminal liability? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: Which test is applied regarding the criminal capacity enquiry in respect of pathological incapacity (mental disability)?

Take note of the application of the criminal capacity enquiry test in respect of intoxication and non-pathological incapacity.

Answer: ___________________________________________________________________________ ___________________________________________________________________________

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Question: Give the elements for a successful defence that due to pathological incapacity (mental illness), the accused did not have criminal capacity. Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ Question: Who carries the burden of proof to prove that the accused was mentally disabled? Answer: ___________________________________________________________________________ ___________________________________________________________________________

Please take note of section 35(3)(h) of the Constitution. Regarding the set of facts:

Question: Did the accused have criminal capacity? Answer: ___________________________________________________________________________ ___________________________________________________________________________

1.

INTOXICATION Please take note: Intoxication was also discussed at chapter 3: conduct and may exclude the conduct element for criminal liability. Intoxication will be discussed at chapter 6: intent, again. Study: S v Chretien case (page 138); and Section 1 of the Criminal Law Amendment Act 1 of 1988.

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Please take note: At chapter 3: conduct, reference was made to above-mentioned case and legislation. SET OF FACTS:

The accused attended a party where, without her knowledge, her drink was spiked. The effect of the spiked drink was to make her extremely aggressive with the consequence that she assaulted another person attending the party. The accused was charged for the common law crime, assault. Her defence was that she did not have criminal capacity due to intoxication as a result of her involuntarily ingesting a prohibited drug. Question: Will intoxication exclude criminal capacity? Question: What is the difference between pathological incapacity and an intoxicated person? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: Discuss the Chretien case in respect of the effect of intoxication on criminal capacity. Legal question: ___________________________________________________________________________ ___________________________________________________________________________ Facts of the case: The facts have already been discussed at chapter 3: conduct. ___________________________________________________________________________ ___________________________________________________________________________

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Judgment regarding the legal question: ___________________________________________________________________________ ___________________________________________________________________________ The test applied to establish criminal capacity in respect of intoxication:

Take note of the application of the criminal capacity enquiry test in respect of the defence, non-pathological incapacity.

___________________________________________________________________________ ___________________________________________________________________________ Effect of the judgment regarding the legal question: The consequence of the judgment was the implementation of section 1 of the Criminal Law Amendment Act 1 of 1988 which has already been discussed at chapter 3. Why was the act implemented? Answer: ___________________________________________________________________________ ___________________________________________________________________________ Question: Discuss section 1 of the Criminal Law Amendment Act 1 of 1988. The elements of a statutory offence are as follows: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________ ___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ iv._________________________________________________________________________ ___________________________________________________________________________ v._________________________________________________________________________ ___________________________________________________________________________ Question: Is there a necessity for section 1 of the Criminal Amendment Act? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ Regarding the set of facts:

Question: Did the accused have criminal capacity? Answer: ___________________________________________________________________________ ___________________________________________________________________________

1.

PROVOCATION AND EMOTIONAL STRESS, ALSO REFERRED TO AS NON-PATHOLOGICAL INCAPACITY

Study S v Eadie case (page 147). SET OF FACTS: The following facts are based on the Eadie case:

The accused, a hockey player, consumed a large amount of liquor at a social function. Late at night he got in his car and drove home. The deceased who was driving another vehicle, overtook the accuseds car and then drove slowly and in such a manner that the accused could not overtake him. The accused eventually overtook him but then the deceased drove very fast behind him with his lights on bright. The accused failed in putting a distance between him and the deceased. They both stopped at the traffic lights. The accused got out of his car, took his hockey stick, walked to the deceased car, pulled him out of the car and assaulted him continuously. The deceased died as a result of the assault. It was so-called road rage. The accused was charged for the common law crime, murder.

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The accused alleged that he did not have criminal capacity due to provocation and emotional stress, so-called non-pathological incapacity. Question: Will the accuseds defence succeed? Question: Discuss the Eadie case (reported in 2002) in respect of the effect of provocation and emotional stress on criminal capacity? Answer: Legal question: ___________________________________________________________________________ ___________________________________________________________________________ Facts of the case: The facts have already been given here above. Judgment regarding the legal question: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ The test applied to establish criminal capacity in respect of provocation: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Effect of the judgment: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Question: IN CONCLUSION REGARDING THE CRIMINAL CAPACITY ELEMENT: Why is the criminal capacity element for criminal liability the FOURTH element for criminal liability?

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Answer: ___________________________________________________________________________ __________________________________________________________________________ 3. STUDY Study: The case law in the Snyman Casebook; and The relevant sections in the Constitution. EVALUATION Do the questions in the study guide. You must be able to identify in a set of facts the relevant element for criminal liability in general, for example may a defence of provocation be raised to exclude the element, criminal capacity?

4

Additional questions: Regarding the following cartoon:

If the accused is charged for the common law crime, contempt of court, which defence, if any, may the accused successfully raise to exclude criminal capacity?

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A truck driver sees a priest on the side of the road and stops to give him a lift. A while later, he sees a lawyer with a brief case and steers his truck towards him. He glances at the priest and realises he cant run over the lawyer. He drives past but looking in the rear view mirror he cant see the man. I am sorry, Father, the driver says. priest says. I got him with my door. unknown I barely Source missed that lawyer at the side of the road. Dont worry, son, the

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CHAPTER 6 FAULT1. INTRODUCTION SET OF FACTS: A decides to derail a train to highlight the plight of people dependent on public transport. As a result of the derailment of the train, 8 people die and 6 are injured. A is charged with the common law crime of murder in respect of the deceased as well as the common crime of attempted murder in respect of the injured. The form of fault for criminal liability in respect of these crimes is intention. Question 1: Did the accused have intention? Question 2: Where an accused negligently causes the death of a person, the accused may be charged with the common law crime, culpable homicide. Discuss how the form of fault, negligence differs from intention.

Chapter 6 will be discussed with reference to the given set of facts.

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2.

DISCUSSION OF FAULT

An accused will be criminally liable if he/she had fault in the form of I. II. Intention (dolus); or Negligence (culpa). Please take note: Each form of fault will be discussed separately hereafter. Answer the following questions:

Question: What does the element fault mean? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ . DISCUSSION OF INTENTION ( DOLUS) An accused will be criminally liable if he/she had fault in the form of intention (dolus). The accused will have intention if:

The accused complies with the elements of intention; and There is no defence excluding intention.

A.

Discussion of the meaning of intention

Question: Intention/dolus consists of 2 elements. Give the 2 elements. Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________

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___________________________________________________________________________ Please take note: Each of the above-given elements will be discussed hereafter.i.

Regarding the first element of intention: knowledge of the unlawfulness of the conduct: Please take note: unlawfulness was discussed at chapter 4.

Question: What does it mean that the accused must have knowledge of the unlawfulness of conduct? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Please take note: If the accused did not have knowledge of the unlawfulness of the conduct, the accused may raise it as a defence to exclude intention.

See hereafter B: Discussion of the defences that may exclude intention.

i.

Regarding the second element of intention: 3 forms of intention:

Question: Give and discuss the 3 forms of intention. Answer: i.__________________________________________________________________________ ___________________________________________________________________________ ii._________________________________________________________________________

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___________________________________________________________________________ iii.________________________________________________________________________ ___________________________________________________________________________ _ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Please take note: The accused may have a defence that excludes intention.

See hereafter B: Discussion of the defences that may exclude intention.

Question: An accused may only be convicted of a crime if he or she had intention to commit a crime. Which test is applied to establish intention? Answer: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Please take note: The test applicable to establish the relevant element for criminal liability has already been discussed at the relevant chapter; and The difference between a normative versus psychological theory of fault will be discussed at chapter 7: Critical evaluation of the elements for criminal liability and principles underlying the elements.

Question: How does the element, intention differ from the element, criminal capacity (chapter 5)? Answer:

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___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Discussion of the defences that may exclude intention

A.

Question: Will motive ex