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 PBL410 (CRIMINAL LAW)

FAULT CONTINUED

NEGLIGENCE

- Negligence is the 2nd form of fault

- We determine negligence using the reasonable person test
- When can we say a person was negligent? à If the reasonable person in X’s position
would have foreseen the possibility of certain events transpiring and would have
taken steps to prevent it from happening
- We are dealing with objective foreseeability (what X should have done/foreseen)
- Reasonable person = reasonable foreseeability + reasonable preventability

Leave out the following cases: Naidoo + Motau + De Jager

Kramer case:
- K was a surgeon and had to perform tonsil surgery on a girl. During the operation,
the anesthesiologist had failed to make sure that the oxygen pipe was placed
properly. This resulted in the girl dying due to lack of oxygen. Both the doctor and
the anesthesiologist were charged with culpable homicide.
- Legal Q: whether K (surgeon) was also guilty of culpable homicide? Was he negligent
for not checking whether the anesthesiologist performed his duties properly?
- When it comes to medical negligence, negligence is assessed on a higher yardstick à
we must ask if a reasonable surgeon (not merely a reasonable person) would have
foreseen the possibility of the child dying and taken steps to prevent it
- Court held that it is not the surgeon’s duty to check if the anesthesiologist is
performing his duty correctly. A reasonable surgeon in the accused’s position would
not have done things differently. He was thus found not guilty of culpable homicide

Burger case à What is the reasonable person?

- = it is a fictitious person/entity/benchmark/yardstick we use to measure X’s conduct
against. It is an objective standard
- Does the reasonable person have any special qualities? à no
- One does not have to expect the reasonable person to have extreme intelligence, or
prophetic insight, or extreme reflexes etc. One can just expect the reasonable
person to have normal common sense
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this module.
 - The courts use the reasonable person yardstick to see if X fell short of this conduct
ito negligence
- Difference between intention + negligence:
o Intention à we are testing X’s mind at the time of the crime
o Negligence à we are applying an objective standard to ask if X falls short of
this standard at the time of the crime
- NOTE: if X is a doctor or some in some other specialty/professional fieldà we will
test his negligence on a higher standard. The reasonable person becomes the
reasonable doctor/specialist etc.

Imperitia Culpae Adnumeratur:

- = This is negligence ito which X undertakes to do a certain task that he is not skilled
enough to do
- e.g.) X is a general practitioner (GP) but one day he decides to perform heart
surgery. Things go wrong and the patient dies. Was X negligent? Yes. Why? Bc he
undertook to perform an operation he was not qualified to perform

Human Experience:
- Ito human experience, it is not a requirement that the reasonable person foresee
the exact causal chain of events that happened
- All that is required is that the reasonable person in X’s position would have foreseen
the general possibility of death ensuring and would have taken steps to prevent it
o e.g.) Humphreys case à a reasonable person in Humphrey’s position would
have foreseen that entering a train crossing is dangerous and would have
taken steps to prevent it (would have waited patiently in line until it was his
turn to cross the rail)

Leave out the following cases: Bernadus + Wessels v Pretorius

‘Thin Skull’ cases:

- Thin skull cases are situations where even the reasonable person in X’s position
would not have foreseen the event turning out the way it did

Van As:
- Facts: the deceased was severely overweight. On the day in question, the accused
slapped the overweight man lightly on shoulder. The overweight man lost balance
and fell on his back and hit his head on ground which caused his skull to fracture and

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this module.
 he eventually died. His weight made the fall more severe. The accused was charged
with culpable homicide.
- The court had to assess whether a reasonable person in the accused’s position have
foreseen that a light slap would result in this turn of events?
- Court held that even a reasonable person in the accused’s position would not have
foreseen this overweight man losing his balance over a light slap. He was thus not
negligent.

Degrees of negligence
- Our criminal law does not have degrees of negligence
- There is no defence in our criminal law of contributory negligence
- Concrete negligence is where negligence relates to all elements of the crime

Leave out the Zake case

LUXURIA / CONSCIOUS NEGLIGENCE

- Luxuria refers to situations where X foresees the possibility of a result happening,

but X does not reconcile himself with the possibility. Instead, X unreasonably comes
to the conclusion that it will not happen.
o e.g.) X sees Y across the dam. Z is walking close to Y. X foresees the possibility
that firing a shot at Y might hit Z but X reasons with himself that he’s so good
at shooting that hitting Z will not happen. X then fires the shot and hits Z
- There is a fine line between dolus eventualis and luxuria à the difference lies in the
2nd leg of the test (the reconciliation aspect)
o Dolus eventualis à X reconciles himself with the possibility
o Luxuria à X does not reconcile himself with the possibility (instead, he
unreasonably comes to the conclusion that the event will not happen)

Ngubane case
- Facts: the accused got intoxicated. He came across the deceased and stabbed him a
few times which caused the deceased to die. He was charged with culpable homicide
(not murder)
- The prosecution argued that the facts revealed that there was sufficient proof of
intention
- Legal Q: does proof of intention on the set of facts exclude the possibility of
negligence? Can intention and negligence be present on the same set of facts? (no)

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this module.
 - Proof of intention does NOT exclude the possible existence of negligence. Therefore,
the accused was convicted of culpable homicide. This point caused a lot of
confusion. However, clarity was provided in the Humpfreys case
- The court also distinguished between conscious negligence (luxuria) and dolus
eventualis
o Dolus eventualis à we deal with X’s state of mind (foresight) + his
reconciliation
o Conscious negligence à also dealing with foresight, but reconciliation is
absent

Humpfreys case:
- Facts: the accused drove a school bus across the train tracks bc he didn’t want to sit
in traffic. He did this many times and it always worked but this time the train hit the
bus and 10 children died.
- Trial court:
o Accused was charged with murder
o Trial court accepted the argument that the accused foresaw what would
happen if he crossed the train tracks and reconciled himself with this
possibility.
- Appeal court:
o On appeal it was held that the prosecution had not proved intention beyond
reasonable doubt. Proving such intention would have entailed that the
accused didn’t only have foresight into killing the children but also killing
himself. From the facts it’s clear that his intention was not to kill himself
(since he crossed the tracks so many times in the past). Therefore, the
accused was negligent. He unreasonably came to the conclusion that the
train wouldn’t hit them. This is a classic example of luxuria.
- Ngubane and Humpfreys came to different conclusions, but the Humpfrey’s
decision is better

EXCUSES

- Excuses are also referred to as mistake/error

- What is an error/mistake? à it is the defence X would raise if he was mistaken as to
one of the elements of the crime

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 o e.g.) X went on a hunting trip and thought he was shooting an animal but he
actually shot a human. This is a mistake of fact (relates to first element of
crime)
o e.g.) X is mistaken as to the unlawfulness of his act à X shoots someone
climbing through her window. X subjectively thought she was acting in
private defence against a burglar but objectively viewed X’s life was not in
danger bc it was actually her husband coming home through the window bc
he forgot his keys. Here X is mistaken as to the unlawfulness of the act
- When will mistake be a defence? à only if the mistake was a material one
- When is a mistake material? à when it relates to one of the elements of a crime
- This test is also subjective (we look at what happened in X’s mind and whether he
subjectively believed that certain facts existed)
- Error in persona = X is mistaken about the identity of the victim
- Error in persona is NOT a material mistake à illustrated in Mbombela + Swanepoel

Mbombela case:
- The accused lived in a hut with his family. On the day in question, he was playing
outside with his friends. His hut door was slightly open and it was very dark inside.
Upon approaching the hut, he saw feet sticking out of the hut. In his culture, there
was a belief that this was indicative of an evil spirt being present in the house. He
took a stick and started hitting this thing in the hut, only to found out later that it
was his nephew (who then died as a result). The accused was charged with murder
- Legal Q: whether this cultural belief excluded his intention? Was this mistake
material? Can a cultural belief exclude knowledge of unlawfulness? (lecturer says
yes)
- Court then convicted him of culpable homicide (not murder) + held that a mistake
about identity is not a material mistake

Swanepoel case:
- This case also illustrates that mistake about identity is not a material mistake
- Facts: the accused was a policeman. He was searching for suspect who drove a white
car. On the day in question, the policeman was driving and stopped at an
intersection. A white car stopped next to him and looked a lot like the suspect. The
policeman thought it was the suspect so he fired a shot. It turned out the person
who was shot was not the suspect. The policeman was charged with murder
- Court held that mistake about identity is not a defence

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - The accused also relied on the provisions of sec 49 of CPA (use of force on suspect)
and was eventually charged with culpable homicide

Recap:
- Mistake of fact à X is mistaken about the identity (error in persona) or the object
(e.g. X thinks he is shooting an animal but he is actually shooting a human being)
- Mistake of law à X is mistaken about the unlawfulness of his action
- The mistake need not be reasonable → it is a subjective inquiry → assess what went
on in X’s mind at the time of the crime
- For mistake to succeed as a defence, it must be material
- Is the mistake as to who you are killing material? à NO

ABERRATIO ICTUS
- Aberratio Ictus = Latin for ‘missing the blow’
- e.g.) X is walking across dam and wants to shoot a bird → aims firearm but bullet hits
a tree and ricochets and hits Y
o How do we asses X’s criminal liability?
o X plans in his mind what should happen (X wanted to shoot the bird) but as
result of clumsiness, this does not happen
- e.g.) X wants to shoot Y, but bullet ricochets off tree and hits Z
o Do we merely transfer X’s intention re Y to Z? Or do we assess X’s criminal
liability based on the general principles of criminal liability?
o We assess based on the general principle of criminal liability:
§ X will always be guilty of attempted murder in respect of Y
§ If X foresaw possibility that bullet might ricochet and reconciled
himself with that possibility, X will be guilty of murder based on the
normal construction of dolus eventualis
§ If X foresaw the possibility that bullet might ricochet but
unreasonably rejected it as a possibility (thought it would not happen)
à then X will be guilty of culpable homicide based on conscious
negligence
§ If X failed to see possibility that bullet might ricochet but a reasonable
person in X’s position would have foreseen it and taken preventative
steps à then it is normal negligence and X will be guilty of culpable
homicide
§ If prosecution fails to prove either intention or negligence à X will be
not guilty

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o We determine X’s criminal liability based on the normal principles of
assessing for fault → this is in line with the concrete approach
- 2 approaches:
o (1) Transferred intent approach → previous approach
§ X’s intention in respect of Y was merely transferred to Z
§ Argued: X had the intention to fire a shot and kill a human being →
this intention is merely transferred from Y to Z
o (2) Concrete approach → correct approach currently followed in SA
§ Argued: X’s intent in respect of Y cannot merely be transferred to Z
§ X’s criminal liability must be assessed based on the general principles
of criminal liability
§ In line with subjective inquiry in terms of intention

Hedley case:
- Accused wanted to shoot a bird at a dam. He fired a bullet which struck the water
level of the dam and ricocheted and struck a young girl playing on the other side of
the dam. H was charged with murder
- Legal Q: whether he foresaw the possibility of hitting the young girl and reconciled
himself to this possibility
- Court held: there was no intention of H’s part but he was negligent → he foresaw
the possibility that bullet might ricochet and unreasonably came to the conclusion
that it would not happen
- Found guilty of culpable homicide

Raisa case:
- Complainant was a pregnant female who had her other child with her (very young
baby) → the accused wanted to stab complainant with a knife → in order to protect
herself, complainant held her baby in front of her → accused then stabbed the baby
- Legal Q: was the accused guilty of assault with intent to do grievous bodily harm in
respect of the baby → did accused foresee the possibility of the mother holding her
baby as protection in front of her?
- Assault is an intent crime → cannot be held to be negligent
- Court held: NOT guilty of grievous bodily harm in respect of the baby → he did NOT
foresee that the mother would use her child as protection and that he would stab
the baby and reconciled himself with this
- Found not guilty

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
→ leave out Mkansi

Mistake as to the Causal Chain of Events

- Rarely features in our courts
- Overlap with the element of causation
- e.g.) X and Y break into Z’s home to rob the home, they find Z inside and strangle Z
and throw him in the swimming pool. At the moment they strangle him, they believe
in their minds that Z is already dead (they believe they are throwing his corpse into
the swimming pool). Post-mortem reveals Z died as a result of drowning
- Can X and Y raise as a defence that the causal chain of the events differed in such a
manner that they lacked intention (ie: the causal chain of the events they envisioned
for themselves differed from the way it panned out)
- Courts are reluctant to accept this defence

Masilela case:
- M and his co-robbers entered the farm of the deceased → broke into his house and
strangled the deceased with a tie. Thinking that he was already dead, they threw him
on his bed and set the house on fire after robbing the house
- When deceased was found and post-mortem was performed on him → it transpired
that he did not die of strangulation → he died as result of carbon monoxide
poisoning as result of fire. They were charged with murder
- Defence: their intention was not to kill the deceased by carbon monoxide poisoning
à there was a mistake regarding how the causal chain of events transpired
- Court held: court rejected their defence and held that they foresaw the possibility
that the deceased might die and reconciled themselves with it. They believed that
he was dead at the time they strangled him → there was clearly an intention to
kill.
- The fact that the death ensued in a different manner from what they envisioned,
should not afford them a defence. Strangulation and the act of setting house of fire
formed part of 1 single cause of conduct
- They were found guilty of murder

Goosen case:
- Mistake about the causal chain of events CAN be a defence if there was a substantial
deviation in how the events took their course from how X envisioned they would
take their course

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - G was part of a gang setting out to commit a robbery → armed with firearms. On
their way they pulled over on road bc they wanted to rob a specific vehicle that was
traveling near them → they forced the vehicle to also pull over. They got out of the
vehicle with their firearms in their hands. While standing outside, vehicle started to
roll. G’s co-robber got a fright and a shot was fired from his firearm in an involuntary
fashion. This shot killed the person in the other vehicle. They were all charged with
murder
- G’s defence: although at outset of robbery mission he foresaw the possibility that
someone might get injured or killed during the robbery, and reconciled himself with
it, he had not foreseen possibility that this might happen by means of an involuntary
shot being fired by one of his co-robbers → this was a substantial deviation from
what he had envisioned re how the events would pan out
- Court accepted his defence and he was only found guilty of culpable homicide
- Held: a mistake ito the causal chain of events can be a defence if there is a
substantial deviation in how the events eventually transpired

Ignorance/Mistake of Law:
- X is mistaken as to the unlawfulness of his actions
- X subjectively and honestly but erroneously believes that he is acting in accordance
with a ground of justification (eg: consent, private defence, necessity)

De Blom case:
- Mr and Mrs De Blom were travelling and they found dollar notes and jewellery in her
luggage
- Her defence: she was unaware of the fact that it was an offence and that she needed
permits
- Court held: ignorance of the law can be a complete defence
o This defence succeed ito the jewellery
o But not ito the dollar notes → she is a frequent traveller and should have
been aware that a permit is needed to take money out of country

→ leave out Speedy and Barnard

Longdistance case
- L was a company charged ito a certain Act for contravening a provision of the Act for
transporting bags of sugar that exceeds the amount that they were permitted to
transport

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acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 - Defence: they gathered legal advice which informed them that they were well within
their rights to transport that amount of sugar. But this legal advice was blatantly
wrong
- Court held: if you find yourself in a field of specialization (eg: they did business
which included transporting sugar), there is a legal duty on you to acquaint
yourself with the legal provisions pertaining to your field of
specialization/profession. If you are later charged ito a certain provision, you
cannot merely raise as a defence that you did not know/weren’t aware of the
provision (confirmed in the Adams case)
- Court rejected their decision and held they should have gathered a different opinion
as it was clear from the evidence that the legal advice they received was so blatantly
incorrect that it should have caused suspicion which would have led them to get a
second opinion

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this module.
UNIT 8 - MULTIPLE DEFENCES

Study outcome: knowledge and understanding of the meaning and effect of intoxication
and provocation as defences

- There are 2 multiple defences: intoxication + provocation

INTOXICATION

- Intoxication is a multiple defence → this is because intoxication can be a defence on

multiple levels of criminal liability (the pyramid)
- Intoxication can cause X to act involuntary, intoxication can cause X to lack criminal
capacity (cannot appreciate the wrongfulness of his act or act in accordance with it),
intoxication can exclude fault or intoxication can be a factor taken into account
when sentencing
- Intoxication can thus be a defence to: act, capacity, and fault (these elements can be
excluded bc of intoxication)
- Intoxication can also mitigate punishment
- When it comes to intoxication, there are common law defences as well as statutory
defences

Common Law: Defences

Involuntary Intoxication:
- X becomes intoxicated without his voluntary cooperation
- This will always be a complete defence → bc X could not have prevented his
intoxication bc he was not aware that he was becoming intoxicated (e.g. drink was
spiked)
- Hartyani:
o Accused (H) went to friend’s house for a coffee and the friend added Brandy
to the coffee. H then drove under the influence and was charged with
reckless driving and driving under the influence
o Legal q: was involuntary intoxication a defence to his charge of driving under
the influence?
o Court held: it was a complete defence as the evidence clearly established he
got intoxicated without his voluntary cooperation → he was unaware of the
fact that his coffee had Brandy in it. H was found not guilty

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this module.
Voluntary Intoxication:
- This is where X voluntarily, out of his own will, gets intoxicated
- There were 2 approaches to voluntary intoxication under the common law:
o (1) The unyielding approach à = voluntary intoxication should never be a
defence to an accused person.
§ This was the approach until 1981. Then the Chretien case occurred
which led to a more lenient approach
o (2) The lenient approach (currently followed in SA) à = X’s liability should still
be assessed based on the general principles of criminal liability, even if he
was intoxicated. If one element of the pyramid is absent/excluded due to
intoxication, then X should be afforded the defence
§ The Chretien case + lenient approach caused public concern as people
were scared that the defence of voluntary intoxication would be
abused. This led to the Criminal Law Amendment Act 1 of 1988, which
introduced the defence of statutory intoxication
- Chretien case:
o Facts: The accused went to a party where he consumed alcohol. After the
party, he got in his car and drove into the street. There were people standing
in the street. He drove towards them thinking they would move out of the
way. But they didn’t. He drove into them. He killed 1 person and injured 5
others. He was charged with murder and attempted murder. He relied on
intoxication as a defence to capacity.
o The court had to assess whether voluntary intoxication should be a defence
to him + the court assessed the defence of voluntary intoxication in general
o Court held the following:
§ Intoxication can have an effect on various levels of liability
• e.g.) It can exclude the act (X is so drunk that he cannot
commit a voluntary act),
• It can exclude capacity (X is so drunk that he cannot appreciate
the wrongfulness of his act or act in accordance with this
appreciation)
• It can exclude fault (X was so drunk and he did not have the
intention to commit the act)
• It can be a mitigating factor ito sentencing (X’s intoxication can
diminish X’s criminal responsibility)

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 § The accused’s intention was excluded as a result of intoxication. On
the murder charge, the prosecution couldn’t prove intention but they
could prove negligence. So the accused was found guilty of culpable
homicide. He was also acquitted on the attempted murder charges.
Voluntary intoxication was a complete defence here.
- The case opened the door to the lenient approach to voluntary intoxication. This led
to public concern that this defence could be abused. This led to the Criminal Law
Amendment Act being introduced.

Actio Libera in Causa:

- This is similar to antecedent liability under the act/deed
- In the context of intoxication, actio libera in causa refers to the situation where X
wants to commit a crime but he knows he doesn’t have the courage to do it.
However, X also knows that if he becomes intoxicated then he will have the courage
to commit the crime. So then X becomes intoxicated in order to get the courage to
commit the crime.
- How do we assess X’s criminal liability here? à based on the normal general
principles (the criminal law pyramid)
- Leave out the Baartman case

Delirium Tremens:
- Delirium tremens refers to a mental illness that develops from alcohol usage over a
long period of time

Statutory law: liability

- The Chretien case opened the door to the lenient approach to voluntary
intoxication. This led to public concern that this defence could be abused. This led to
the Criminal Law Amendment Act (hereafter “CLAA”) being introduced.
- The CLAA introduces the defence of statutory intoxication + provides for acts
committed under certain substances to be punishable
- Intoxication does not only refer to alcohol. It also refers to drugs and narcotics
- Sec 1 of the CLAA: requirements that must be met for X to be found guilty of
statutory intoxication:
o (1) X consumes or uses
o (2) any substance (alcohol, drugs etc)
o (3) which impairs his faculties

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o (4) while knowing that such substance has that effect
o (5) commits an act which is prohibited
o (6) while his faculties are impaired
o (7) X is found to NOT be criminally liable for such act bc his faculties were
impaired
- The prosecution MUST prove these 7 elements when X is charged with a crime ito
the CLAA
- Application of the CLAA:
o We have the main crime (e.g. X uses or consumes a substances whilst
knowing that the substance has an intoxicating effect and then commits the
crime), and
o We have the defence of statutory intoxication (X relies on the absence of
criminal capacity due to intoxication)
- Main purpose of the CLAA à to curb the abuse of the defence of voluntary
intoxication
- This section also led to 2 difficulties:
o (1) Limited scope of liability due to the wording of the Act
§ X will only be liable under the CLAA in cases where X is found NOT
guilty of the main crime due to either lack of criminal capacity or
having acted involuntarily
§ Sec 1 of the CLAA only applies to lack of criminal capacity and
voluntariness of the act. It does not apply to non-liability due to lack
of intention
• e.g.) X is charged with attempted murder due to becoming
intoxicated. If X is found not guilty of the main crime (bc he
had no intention) then X cannot be charged ito sec 1 of the
CLAA
o (2) Reverse onus of proof on the prosecution
§ When it comes to the main crime à the prosecution merely has to
prove that there is reasonable doubt that X had criminal capacity
§ When it comes to sec 1 CLAA statutory liability à the prosecution
must prove that X lacked criminal capacity beyond a reasonable
doubt (much harder to prove this)
§ Just bc there is reasonable doubt that X had capacity ito the main
crime, does NOT mean that X lacked capacity beyond reasonable
doubt for the purposes of sec 1 of the CLAA

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
Ramdass case à intoxication as an element of the crime
- This case illustrates the anomaly behind sec 1 CLAA
- Facts: The accused went out with his fiancé & her mother. They all returned home.
The mother then went out on her own. When the mother returned home, she saw
her daughter (the deceased fiancé) in the house with a plastic bag over her head.
The accused was found the next day. He was very disorientated and did not
remember what happened the night before. Evidence revealed him and fiancé did
not have relationship issues, but on the night in question they both took drugs &
alcohol. It was clear from the evidence that it was the accused that killed the
deceased. He was charged with murder. He placed his criminal capacity in dispute
(due to intoxication, he lacked capacity to either appreciate the wrongfulness of his
act or act in accordance with that appreciation)
- Court held the following:
o The court should not too readily resort to finding that an accused person is
not guilty by reason of the fact he lacked criminal capacity bc of intoxication
o In the event that there is reasonable doubt whether the accused had criminal
capacity at the time of the crime, this doubt should operate in favour of the
accused
o In this case it was held there was reasonable doubt as to the accused’s
criminal capacity → he was thus found NOT guilty on the main crime
o The prosecution then sought a conviction ito sec 1 of the CLAA → but it was
held that the prosecution had not discharged the onus of proving lack of
criminal capacity on the main crime beyond reasonable doubt → accordingly,
the court could not convict him ito sec 1 either.
o The court expressed view that the legislature should revise this section
o The accused was NOT guilty on both the main crime + ito statutory
intoxication

Mbele case
- Facts: the accused was charged with theft. There was reasonable doubt as to his
criminal capacity as he was intoxicated at the time he committed the crime
- Court held:
o The accused was not guilty on the main crime by reason of lacking criminal
capacity
o Court found he could not be convicted ito sec 1 CLAA either → the
reasonable doubt that existed regarding his criminal capacity ito the main

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 crime had not been sufficient to establish proof beyond reasonable doubt for
purposes of a sec 1 CLAA conviction
o Mere uncertainty as to criminal capacity does NOT constitute proof beyond
reasonable doubt of lack of criminal capacity for purposes of sec 1 CLAA
(statutory intoxication)

September case
- Facts: accused was charged with murder and assault arising from an event where the
accused was intoxicated. The accused placed his criminal capacity at time of crime in
dispute
- Trial court:
o The accused was found not guilty of main crime due to lack of criminal
capacity. But he was found guilty of sec 1 CLAA
o He appealed against his conviction by arguing that the prosecution had not
proved beyond reasonable doubt that he lacked criminal capacity in order to
have convicted him ito sec 1
- Appeal court:
o The prosecution had indeed proved all the elements for the main crime. So
his conviction was altered to be guilty ito the main crime

Ingram case
- Legal question/issue: whether the provisions of the CLAA also applied to situations
where X was so intoxicated that he acted involuntary (yes)
- Court held: it does indeed apply. If the legislature wanted to punish conduct by an
intoxicated person that lacked criminal capacity, it would also want to punish
someone who was so intoxicated that they lacked voluntariness ito the act/deed

Flanagan case:
- The importance of this case merely relates to the procedural aspect dealing with
how to state that X is not guilty of crime
- e.g.) X is not guilty of on the crime of murder, but X contravened and is convicted ito
sec 1 of Act 1 of 1988

PROVOCATION

- Similar to intoxication, provocation is a multiple defence because it can have an

effect on various/multiple levels of the pyramid:

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 o Provocation could be a factor excluding the voluntariness of X’s act. Although
this can be raised, it is unlikely to be a successful defence.
o Provocation can exclude criminal capacity. This will result in non-pathological
criminal incapacity.
o If capacity doesn’t succeed, provocation can also be a factor excluding fault.
o As a last resort, provocation can be raise to diminish criminal responsibility

Possible way to answer an application question:

- Scenario: Barbie and Ken reside in a nice house. One evening Ken skips his workout
to surprise Barbie with flowers. Upon arrival at their house, Ken opens the door and
finds barbie having sexual intercourse with Ben. Ken gets angry and grabs an
ornament and hits Ben with it. Ben loses consciousness and dies later in the hospital.
Ken is charged with the murder of Ben. Discuss the possible defences Ken can raise
on the charge of murder:
o Ken could claim that provocation excludes the voluntariness of his act (this is
the defence of sane automatism). However, this defence is unlikely to be
successful. Losing your temper does not equate to involuntariness.
o Alternatively, Ken can claim lack of criminal capacity. Provocation can exclude
criminal capacity. This is the defence of non-pathological criminal incapacity.
External factors, like provocation, can give rise to this. This is a defence that is
not statutorily provided for except for sec 78(2) CPA. This section says that if
the accused was, by reason of mental defect, unable to appreciate the
wrongfulness of his act or act in accordance with that appreciation, a court
shall send the accused person for mental observation. If the incapacity was
due to mental illness à the court MUST do this. If the incapacity was due to
any other reason (including provocation) à the court MAY do this. There is
no onus of proof on the accused iro non-pathological incapacity (there is just
an onus of rebuttal). If Ken is successful with this defence, he will walk out of
the court as a free person.
o Alternatively, Ken can claim that provocation excludes his fault. OR that the
provocation led to diminished capacity. OR that the provocation can be a
mitigating factor when it comes to sentencing
- Note: each point ^ should be illustrated with case law

Leave out the following cases: Di Blasi, Ferreira, Steyn, Romer, Ntshasa, Daffy, Momberg,
Kalogorolpoulos, Mnisi, Marais

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
Arnold case:
- In this case, the accused placed all elements of criminal liability in dispute
- Facts: the accused and the deceased were married. The accused had a son from a
previous relationship with a hearing disability. The deceased had no issue with the
son staying with them. Problems only started when the mother in law moved in.
Conflict arose between the accused and the deceased. On the day in question, the
deceased told the accused that she wanted to become a stripper. The accused got
angry and fired a shot at her. However, the bullet missed her. Later in the day, the
neighbours heard another shot. This second shot is the fatal shot that killed the
deceased. The accused was charged with murder.
- The accused’s defence counsel disputed whether he acted voluntarily (they argued
that provocation by the deceased made the accused’s act involuntary). Alternatively,
they argued that he lacked criminal capacity due to non-pathological criminal
incapacity. Thirdly, they argued that even if he had capacity, it was diminished by the
provocation. The accused was sent for observation. 2 expert psychiatrists assessed
him and his background.
- Court held that there was reasonable doubt as to whether he had capacity to
appreciate the wrongfulness or his act or act in accordance with this appreciation.
The court found him not guilty of murder. The defence of non-pathological criminal
incapacity succeeded.

Wiid case:
- This case is a classic example of the defence of non-pathological incapacity
succeeding in the context of a relationship
- Facts: the accused and deceased were married for many years. During the marriage,
the deceased was severely abusive towards the accused (physically and emotionally
on a daily basis). On the day in question, the accused was cooking food in the kitchen
when the deceased came home from work. He then assaulted her and broke her
nose. She ran to the bedroom to get a gun and then went back to kitchen and shot
the deceased. This shot killed him. She was charged with murder.
- She relied on the defence of non-pathological criminal incapacity à namely, that as
a result of provocation and abuse over years, she lacked capacity. Although she
appreciated the wrongfulness, her powers of restraint were absent (conative
element is absent).
- The trial court rejected her defence and found her guilty. She appealed
- On appeal it was held that the expert evidence established that the abuse and the
deceased’s conduct all led to her absent capacity. There was reasonable doubt as to

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 whether she had conative capacity to act in accordance with her knowledge. On
appeal, her conviction was set aside and she was found not guilty.

Kensley case
- In this case, the defence of non-pathological criminal incapacity was not successful
- Facts: Mr K went out to a social function. After the party he got into car with 2
women. They were drunk and he was excited to spend the night with them. Later Mr
K found out they were not actually women. They were men. This upset and enraged
him so much he grabbed his gun and fired shots and killed these 2 people. He was
charged with 2 counts of murder. He relied on the defence of non-path criminal
incapacity saying that he was provoked and this caused him to shoot them.
- The court rejected this defence bc there was no expert evidence. The court held that
the mere say so of the accused that he lacked criminal capacity will not be sufficient
to establish this defence. You have to present expert evidence in support of your
defence. He was found guilty.

Moses case:
- Facts: the accused was in a relationship with the deceased. On the day in question,
they were engaging in sexual intercourse and during this, the deceased disclosed
that he was HIV positive. Upon hearing this, the accused got very upset and hit the
deceased with an ornament. He then ran to kitchen, got a knife, and went back to
stab the deceased. He was charged with murder. He placed criminal capacity in
dispute. He argued that the disclosure of the positive HIV status made him lack
capacity to act in accordance with his appreciation of the wrongfulness of his act.
The facts also showed that the accused had an abusive childhood where he was
molested by his dad etc. This background and the HIV disclosure all played a role ito
the accused acting in the way he did.
- Moses’s defence of non-pathological incapacity succeeded. He was found not guilty.

Eadie case:
- Note: this case also comes up under the act/deed study unit. Classic case of severe
road rage
- Facts: the accused was a hockey player. Him and his wife went to a social function
where they had a few drinks. Whilst driving home, the deceased appeared behind
them, flashed his lights, then overtook them, and then purposefully slowed down.
Then the accused would overtake the deceased and do the same thing. This
continued until they reached an intersection. The accused got out of his car and took

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
 his hockey stick and smashed the deceased’s window. He forced the deceased out of
the car and then assaulted the deceased with a stick and fractured his skull. This
caused the deceased to die. The accused left the crime scene, went home, put on
other clothes, and then returned to the crime scene pretending he was an innocent
bystander. The truth eventually came out and the accused was charged with murder.
He relied on the defence of non-pathological criminal incapacity. He argued that
provocation made him lack conative capacity.
- The trial court rejected his defence and found him guilty. He appealed.
- On appeal, the appeal court also rejected his defence and held that road rage is not
permitted. The accused was correctly convicted. His actions were not excusable. He
did not lack capacity, it was a clear case of road rage.
- This defence hasn’t really featured again in case law since the Eadie case

Englebrecht case
- Facts: the accused and deceased were married. The accused was abused daily by the
deceased who was a severe alcoholic. One day the accused decided that she couldn’t
take it anymore. While the deceased was sleeping, she tied his hands to the bed post
and then smothered him with a pillow. She was charged with murder. She tried to
raise private defence and the imminent requirement. She said the imminent
requirement should be extended/relaxed and the common law should be developed
to cater for situations of abusive relationships. However, not enough evidence was
presented for the development of the common law
- The court dismissed her argument. She was found guilty but she got no sentence.
- The lecturer believes that the defence of non-pathological criminal incapacity could
have succeeded here if it was raised

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DISCLAIMER: These notes have been compiled using the prescribed textbook (Snyman CR Criminal Law (2020
7th ed) LexisNexis), the lecture slides, class notes, and the prescribed case law. These notes are merely my own
personal summaries and my own understanding of the work, and I do not take credit for the content. I
acknowledge that all intellectual credit is due to the authors of the textbook and the university lecturer(s) for
this module.
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