Historical approach to provocation

 The general approach to provocation seems to be that a person

simply losing his temper can never justify or be an excuse for killing
or harming another person.
 Normal adults are expected to keep their emotions under control
 At the same time however, where the accuseds loss of temper was
provoked by the victims wrongful conduct, they accused is seen as
morally less blameworthy
 Before 1917 South Africa followed the Roman Dutch approach that is
provocation was not a defence but only a mitigating factor
 In other words if the sentence for murder was death penalty, that
person would escape the death penalty but still go to jail.
 But in 1917 the Criminal Procedure and Evidence Act was passed
making it mandatory for courts to impose the death penalty in murder
cases
 Courts were i with no discretion to sentence despite fact that the
death penalty was considered harsh
 So to avoid injustice courts switched to English law approach in terms
of which provocation could be a partial defence:
“Homicide which would otherwise be murder may be reduced to culpable
homicide if the person who causes death does so in the heat of passion
occasioned by such provocation” (section 141 Transkeian Penal Code
1886)
Further:
“Any wrongful act of such a nature as to be sufficient to deprive an ordinary
person of self-control may be sufficient provocation if the offender acts
upon it on the sudden ad before there has been time for his passion to
cool.”

In other words if someone provokes you and you kill them you wont be
charged with murder but of a lesser charge of culpable homicide because
you are considered less blameworthy. Providing, a normal person in your
situation would also have been provoked by the same circumstances and
did what you did!
  In 1935 Criminal Procedure and Evidence Act was amended to
introduce the concept of extenuating circumstances
 In other words you would not necessarily get the death penalty if you
killed someone
 But in S v Mokonto 1971 the Appellate Division confirmed that section
141 only applied to Transkei and that provocation was not a defence
or even a partial defence but rather part of the evidence court will
take into account in determining whether the accused acted
voluntarily and had the necessary intention to kill
 So in other words there is both a subjective an objective test!

S v Chretien 1981
 Chretien represents a landmark case in South African law not only for
the defence of intoxication but also because it led to criminal capacity
being recognized as a third discrete element of criminal liability.ion
arose whether apart from youth and voluntary intoxication other forms
of temporary non pathological criminal incacaptiy would be regarded
as defences.
 This question was answered in S v Van Vuurne

S v Van Vuuren 1983

The Appellate division held that it is not only drink alone but other factors
such as provocation and severe emotional stress can also cause a person
can cause a person not to realize what he happening or to appreciate the
unlawfulness of his act. And these must be taken into account in assessing
criminal liability.

S v Arnold 1985
Facts
 The accused was a 41 year old man who shot and killed his 21 year
old wife
 The accused claimed that at the time the fatal shot was fired because
of emotional stress he did not have criminal capacity
 He claimed he could not remember aiming the firearm and pulling the
trigger. His description of events prior to and after the shooting was
detailed and precise
 After the shooting he was shocked and remorseful but showed
presence of mind, attempting to summon the police and ambulance
 He entered his home with a firearm in hand
 He was emotionally distraught and angry about earlier events and
was subjected to a number of stressors such as financial problems
and his deteriorating relationship with his mother in law
 His wife enjoyed flaunting her natural assets and taunting him
 Shortly before the shooting she had leaned over while talking to him,
provocately revealing her breasts while stating her intention to take
up a career as a stripper.
Finding:
 The psychiatrist testifying on behalf of the accused noted that the
accused’s mind was so flooded by emotions it interfered with his
capacity to appreciate right or wrong and because of his emotional
state he may have lost the capacity to exercise control over his
actions
 The court was of the opinion that it is not only youth, mental disorder
or intoxication which could lead to a state of criminal incapacity but
also factors such as extreme emotional stress
 Due to the most unusual facts of the case the killing was at variance
with the accused’s conduct before and after the killing. In other words
the accused’s actions during the killing was uncontrolled.
 In other words the accused was acting in a state of automatism
Despite the fact that the court was dealing with the defence of criminal
incapacity, they are now referring to automatism again. So perhaps this
case should have been decided as an automatism case.
S v Campher
Facts
 Mrs Campher was an abused wife who shot and killed her husband
 They had been married for nine months and Mr Campher abused his
wife physically and sexually from the very beginning
 For instance, he assaulted her in the presence of her 9 year old
daughter. He belittled her religion.
 He was authoritarian and regarded her children keep doves. He was
obsessed with them. He regarded her children from a previous
relationship as a burden.
 He also seemed to be mentally unbalanced. Sometimes he thought
he was Jesus other times Hitler. He was also afraid of evil spirits.
 His hobby was to keep doves. He was obsessed with them.
 He forced Mrs Campher to clean out their cage with a vacuum
cleaner
 On the day in question he made Mrs Campher help fix the door of the
bird aviary.
 He insulted her and she went inside the house and fetched a loaded
gun.
 He then went into the house and dragged her back outside to the
aviary with the gun and made her hold a lock against the door so that
he could drill a hole through it.
 Because she was so tired she couldn’t hold the lock steady and the
hole he drilled was crooked. She was tired because she had to stay
awake at night to protect him from the evil spirits
 While she was kneeling down with Mr Campher standing over her,
she shot and killed him with the gun she was holding.
What was she tried for?
 She was tried for murder and raised the defence of criminal capacity
  Not because she was unable to appreciate that it was wrong to kill
her husband but because she was unable at the time to act in
accordance with that appreciation
 No psychiatric evidence was led at tht tiral to support this claim
 Her evidence was that she no longer saw her husband as a person
but as a monster whom she wanted to destroy
What did Trial Court find?

 They convicted her of murder

 Despite the fact that she was clearly under emotional stress and
provocation from having been abused court held that she had
consciously yielded to the impulse to kill her husband and therefore
had the necessary criminal capacity and the intention to kill

On Appeal against her conviction:

 Boshoff and Viljoen held that in principle severe emotional stress

could be a complete defence excluding criminal capacity
 Jacobs held that lack of criminal capacity can only be a defence if it is
caused by a mental illness or defect
 On the facts, Viljoen held that Mrs Campher had lacked criminal
capacity due to stress, but could not acquit her because she had no
psychiatric evidence to support her claim
Conclusion
 Two to one majority confirmed her conviction

S v Laubscher 1988
Facts
 23 Year old medical student whose intelligence levelw as that of a
genius dischareged 21 rounds of ammunition into various rooms of a
house in which his wife and parents in law resided
  As a result his father-in-law was killed
 At his trial on charges of murder and attempted murder it was
contended that at the relevant time he suffered a total psychological
breakdown or disintegration of personality of a temporary nature with
the effect that he acted involuntarily
 This incident was proceeded by verbal exchanges and protracted
struggle to have his wife and child return to him from her parents’
home.
The accuseds defence
 Due to the psychological breakdown his conduct was involuntary and
therefore not criminally responsible
 The accuseds defence failed because according to his own version of
events, his behavior immediately before, during and immediately after
the shooting was goal directed and purposeful (done on purpose)
which is not consistent with automatic behavior
 The court also found that he had powers of discernment (insight) and
restraint (self-control) so he did not lack criminal capacity
 Rather he had diminished responsibility
 His conviction was confirmed by the Appellate Division

The court here made no attempt to distinguish between sane automatism

and lack of criminal capacity in this case
d
S v Wiid 1990
Facts
 In this case the accused shot and killed her husband
 The deceased had been unfaithful throughout their marriage
 He had assaulted her on two previous occasions before the shooting
incident
 Shrtly before the incident the appellant discovered that the deceased
was conducting another affair
 On the day of the incident when the deceased returned home she
confronted him
  He denied the accusation ad shortly thereafter attempted to record
their conversation on a tape
 She attempted to stop him from doing so and in the result the
machine feel to the ground.
 The deceased assaulted the accused quite severely breaking her
nose and tooth and splintering other teeth in the process
 After the assault the deceased chased the appellant out the bedroom
threatening her with further assault
 Shortly thereafter the accused shot the deceased
Finding by Appellate Division
 The psychiatric evidence was to the effect that given the intake of
sedatives and alcohol and lack of eating combined with severe
assault and the threat of death the appellant may well have lacked
criminal capacity altogether (she could not even distinguish right from
wrong either)
 There was reasonable doubt that she had acted voluntarily
(automatism) or that she had the requisite criminal capacity
 Her appeal succeeded and her conviction was set aside
 So in theory this case acknowledge tnpi in theory, in practice it is
difficult to distinguish between the defences of automatism and
criminal incapacity
1. When accused raises a defence of tnpi the State bears burden of
proving that that he had criminal capacity
2. In the absence of exceptional circumstances a sane person who
engages in conduct does so consciously and voluntarily
3. Although the accused does not bear the burden of proof he must
place sufficient evidence before court to case reasonable doubt as to
his criminal capacity
S v Nursingh 1995
Facts
 The accused a university student shot and killed his mother
grandfather and grandmother
 The accused had a predisoportion to emotional outbusrsts
  There was evidence that the accuseds mother abused him sexually
and it was possible that he may have rejected overtures from her
immediately before the shooting took place
 Soni, a friend heard an argument take place and heard the accuseds
mother voice raised to screaming pitch
 Soni arrived at the scene after the shooting had occurred
 He found the accused in a bewildered state babbling incoherently at
times
 And after realizing the enormity of what had happened, they concoted
plan to avoid being held liable for murder

Defence raised:

 At the trial he raised the defence of tnpci saying that he acted in a

‘red rage’ which experts who testified on his behalf referred to as an
‘emotional storm’
 Evidence was led to the effect that given his emotional vulnerability,
the events of the evdning in question had triggered a state of ‘altered
cosnciousness’ in which he experienced a separation of emotional
and intellect
 In killing the deceased he had acted with no more intellect than a dog
biting in response to provocation
 In other words firing gun was a simple motor function (function of
brain)

Finding
 Trial court accepted Nursinghs defence and he was acquitted
outright.

S v Moses 1996
Facts
 The accused and the deceased developed a homosexual relationship
 On the night in question, immediately after unprotected anal
intercourse, the deceased announced that he had AIDS
 This angered the accused and a flood of thoughts entered his mind
 He thought about his own death and about breaking the news to his
family
In his fury he went to living room to get an cat ornament and attacked
deceased with ornament which broke.
 Thereafter he ran to the kitchen and obtained a small knife with which
he stabbed the deceased
 He then returned to the kitchen to fetch a bigger knife with which he
cut the deceased’s throat and wrists
Accuseds defence

 The accused testified that when he cut the deceased’s throat and
wrists throat and wrists he knew what he was doing was wrong
and could not stop himself
 After this event he was shocked and sat in the passage realsing
that he had committed what he thought was a crime
 He tried to remove his fingerprints from objects and attempted to
clean blood stains
 He drove off in a motor vehicle and gave a hitchhiker a lift,
unsuccessfully attempting to seduce him to create an alibi.
 After his arrest he gave a false statement to magistrate later
deciding to tell the truth
 The hitchhiker testified that the accused appeared relaxed and
normal
 A post mortem confirmed that the deceased was HIV positive
 The accused testified that his father had sexually abused him
 A clinical psychologist testied that the accused was prone to rage
reactions and had poor impulse control
 When provoked he would know what he was doing but would not
be able to stop himself
 The experts testified that the HIV admission was a trigger leading
to the collapsing of his controls which led to him lacking the
necessary capacity
  The accused was acquitted

What is interesting about both the case of Nursingh and Moses is that in
both cases the courts accepted a series of goal-directed acts only
constituted one act in each case
In Nursingh the court stated that:

“The psychiatrist identified the resulting mental state as a separation of

intellect and emotion with temporary destruction of the intellect, a state in
which although the individual’s actions might be goal directed, he would be
using no more intellect than a dog biting in a moment of response to
provocation”

The court went on to conclude:

“It is not possible to distinguish between the three killings on the basis that
the mother had caused, provoked the reaction more than the others. It was
one and the same eruption that resulted in the three separate acts. It is
really as though one explosion achieved all three deaths”

In Moses the court also accepted that the accused committed only one act:

“Mr Yodaiken (defence witness) did not conted that the accused was acting
in a state of automatism during the killing. On being asked to comment on
the different weapons used to inflict injures on the deceased, he stated that
the two acts, anmely the hitting of the deacesed with blunt object (cat
ornament) and the stabbings, were in fact one action. The accused was in
an anhilatory rage which tends to damage or destroy”
Despite the courts contention of their being only two different acts, there
are clearly 14!

 Attempting to pick up an onrmanet in bedroom

 Running to lounge to locate another weapon
 Picking up black cat ornament
 Returning to the bedroom with the ornament
 Forcing open the door of the bedroom
 Striking the deceased twice with the ornament
 Running to the kitchen to locate another weapon
 Picking up a knife in the kitchen
 Returning to the bedroom with the knife
 Stabbing the deceased with the knife
 Running back to the kitchen to locate yet another weapon
 Selecting another and larger knife in the kitchen
 Returning to the bedroom with a larger knife
 Cutting the deceaseds throat and wrists (which possibly constitutes
three separate acts)
Clearly to describe all the aboce as one act is outrageous. But once all acts
are collapsed into one, the problem of goal directed behavior falls away.

Perhaps Nursingh and Moses were wrongly decided? (as per Louw) In
other words, the goal directed behavior in these cases indicates that the
accuseds affective function (lost their temper but could still control their
actions and acted anyway) as opposed to his conative capacity (they knew
what they were doing was wrong but could help themselves) was affected.

This still does not explain to us the difference between automatism and
lack of criminal capacity
  Prior to the landmark judgment of Eadie our courts recognized the
defence of non-pathological incapacity based on provocation and
emotional stress.
 There were cases ts not only recognized where the courts recognized
that this defence could exist in principle even though the accused
was convicted (see Campher, Van Vuuren)
 There were also cases in which the courts not only recognized that
you could have this defence, but the accused was actually acquitted
(Wiid; Moses; Nursingh)
 In Eadies case, however the court delivered a judgment that could
spell the end of the defence
S v Eadie
Facts
 The accused and his wife attended a hockey club function on a
particular evening
 During the early hours of the next morning, the accused accompanied
by his wife and two small children were on their way home
 The accused had consumed more than 7 beers during the course of
the evening but he felt capable of driving his motor vehicle.
 While he was driving the accused became aware of a car
approaching from behind at high speed with its headlights on bright.
 After flashing its lights, the car overtook the accused
 It transpired that the car was driven by the deceased
 A little further on, the accused encountered the same vehicle again
 The vehicle had slowed down cosndiereably and after driving behind
the vehicle for a while, the accused overtook the vehicle.
 The deceased then gained spee again and drove up to the bumper of
the accused’s vehicle with its headlights on bright.
 The accused drove faster in an effort to get away but the other car
kept up the pursuit and overtook the accused for the second time.
 The earlier scenario then repeated itself with the deceased slowing
down considerably ignoring the accused’s flashing of his headlights
 The accused became angry and fearful for the safety of his family
  Eventually at a set of red traffic lights, the accused stopped his
vehicle and the other vehicle then pulled up right behind him.
 The accused then got out of his car, took his hockey stick which was
lying in the car, and walked towards the deceased’s vehicle
 The accused alleged that his initial itnetions were to smash the
headlights but he then had a change of mind and decided to smash
the windscreen
 The deceased, however, opened the car door and the accused
lunged at the door with the hockey stick which broke in the process
 The accused then managed to open the door and then proceeded to
punch hit and kick the deceased until the latter was motionless
 It should be noted that the accused alleged that he did not use the
hockey stick to beat up the deceased
 However in the court a quo the court accepted the evidence of a
witness who testified that he had seen the accused with the hockey
stick in his hands
 Furthermore the fact that the accused subsequently disposed of the
hockey stick tended to corroborate the fact that it had been used as a
weapon in the attack
Eadies defence
 The accused was charged with one count of murder and one count of
defeating the ends of justice
 Why defeating the ends of justice? Because after the murder the
accused threw the hockey stick in bushes some distance away and
because he mislead the police by falsely showing them a pair of
jeasn that were different to the ones which he wore at the time of the
commission of the murder
 The accused essentially raised the defence of non-pathological
incapacity resulting from a combination of emotional stress,
provocation and a measure of intoxication
Finding of the Court

 The court examined the arguments of professor Ronald low:

 Louw argued that logic dictates that one cannot draw a distinction
between automatism and lack of self-control
 He argued that if the two were distinct it would be possible to exercise
conscious control over ones actions (the automation test) while
simultaneously lacking self-control (the incapacity test)
 Louw argued that if there was no distinction then the test for conative
capacity should fall away and capacity would then be determined
solely on the basis of whether the person is able to appreciate the
difference between right and wrong. It follows then he argued that
once an accused has been shown to have capacity he may then raise
involuntariness as a defence

1. There is no distinction between conative capacity and automatism

 The court finds that an accused can only lack self-control when he is
acting in a state of automatism (in other words they equated the
defences)
 The court stated that when it has been shown that an accused has
the ability to appreciate the difference between right and wrong in
order to escape liability, he would have to successfully raise
involuntariness as a defence
 The court is saying that once you have established cognitive
capacity, you have to raise automatism to establish a lack of self-
control
 This is problematic because when automatism is present, it means
that the accused’s mind is not functioning or that his acts are
unconscious
 Hence if an accused is acting automatically he would alck both
cognitive and conative capacity

2. Unecessary duplication and confusion

 The court retains the second leg of the test for capacity. In other
words they are duplicating the voluntary conduct requirement
  In other words the test for voluntariness is employed twice: once to
establish if there is voluntary conduct (at stage one of the enquiry into
criminal liability: that is did you commit an act voluntarily? And
secondly to establish mens rea (i.e. could you distinguish between
right and wrong (cognitive capacity) and could you act in accordance
with that distinction (conative capacity). In other words conative
capacity is asking did you have self-control or put another way did
you act voluntarily. If you literally could not control your actions then
clearly you were not acting voluntarily
 By duplicating the voluntary conduct requirement the courts have
created unnecessary duplication and confusion
 Further at stage one of the enquiry into liability we use an objective
test to establish if the person acted voluntarily but in terms of mens
rea a subjective test is used. Which is it? It cannot be both

3. Confusion between cognitive and conative capacity

 The court pointed out that this phenomena where a sane person
temporarily loses cognitive control due to a combination of emotional
stress is rare
 The court agreed with another person who says the only
circumstance in which one could lose control is where ones cognitive
functions are absent and cosneuqnetly ones actions are unplanned
and undirected. There is no such thing as cognitive control.
 Control refers to the conative test for capacity and not to the cognitive
leg. It is also ones conative fucntions which fall apart when one loses
control not your cognitive functions
Conclusion
 The court found that the accused did not lose control: he simply lost
his temper
 The court found that the accused’s version that he could not control
his actions at the critical time could not be accepted as reasonably
true
  Accordingly the court found that when the accused attacked the
deceased he had the necessary criminal capacity
 The court also found that the accused had the necessary intention to
kill and was found guilty of murder
 The accused was also found guilty of attempting to defeat or obstruct
the administration of justice
 The Supreme Court of Appeal held that there is no distinction
between sane automatism and non-pathological incapacity due to
emotional stress and provocation
 The court adopted the view that an accused can only lack self-control
when he is acting in a state of automatism
 In the present case, the court found that the appellant did not at the
relevant time act in a state of automatism
 Therefore the appeal was dismissed

Is this the end of the defence of non-pathological incapacity based on

provocation and emotional stress?
 The court did not expressly abolish the defence
 However, it could be argued that the defence has been abolished by
implication as the court said that this defence was nothing more than
a defence of automatism
 Therefore in order to escape liability an accused would have to
establish that he acted in a state of automatism at the relevant time.

Recap
It is submitted that there are two reasons why South African courts
have not been able to properly distinguish between the defences of
automatism and non-pathological incapacity
1. First the way the capacity test is set out duplciates the voluntary
conduct requirement and in terms of established general principles it
is already required that actus reus entails proof that the conduct of
the accused is voluntary (or that his conduct be subject to the control
of his conscious will. It is not necessary to ask the same question
twice
 2. Second, lack of capacity can lead to a total acquittal. This places the
defence on the same footing as automatism
 In both cases it creates the impression the accused could not control
themselves and therefore in both cases the accused is deserving of
an acquittal
 This is problematic since once you are shown to be acting voluntarily
(not in a state of automatism) you can still lack capacity. But there will
still be goal directed activity
 And any goal-directed activity militates against loss of self-control or a
defence of automatism for that matter
So how in practice do we distinguish between automatism and non
pathological incapacity?

 It is submitted that where an accused acts voluntarily, there will be a

measure of goal directed behavior.
 Where goal directed behavior is present, it necessarily implies that
there must be a level of capacity present in the case of defence of
non pathological incapacity.
 In other words, the question is not whether capacity is present, but
rather to what extent is it present
 This point is not acknowledged by SA courts: the psychological
concept of fault does not acknowledge that culpability is capable of
gradation
 In other words you may not be operating at full capacity but you may
be suffering from diminished capacity
 So to use an illustration, if you are acting like a robot or in a state of
automatism, then you could say that the person is 100 percent unable
to act voluntarily. There should be no goal directed behavior at all.
 But if the court finds you are acting voluntarily but still acknowledges
that severe stress or provocation may have an impact on the mind,
then you must still be functioning normally at least to a certain extent,
perhaps only 70 percent. Because two thirds of your mind is
functioning normally, it means that you should still be able to think
and direct your actions, despite the other 30 percent
 This means that goal directed behavior will be present when you act
and the courts have not been correct in using words such as the
accused could not control themselves or lost total self control when
talking about conative capacity.
 Rather the courts should say, the accused did not have COMPLETE
control
 The problem in South african law is that our courts only take
diminished capacity into account at sentencing. Also they do feel
sympathy for an accused who was subject to stress or provocation
but was not acting like a robot and because they don’t want to
convict, they will acquit the accused despite the fact that the facts of
the case show that perhaps the accused could control themselves
(see Nursingh and Moses). It is not fair to classify someone as a
murderer who has clearly been provoked or subject to stress.
 But is it true that if you act like a robot there is no goal directed
behavior? For example in sleep walking cases, if the accused wakes
up in his sleep, takes his car keys and drives to another town, takes a
knife from the kitchen of the house he enters and then stabs his in-
laws.. Surely this conduct indicates at least some goal directed
behavior?
 The only way then to distinguish between this example and the
example of Moses is the amount of goal directed behavior
 Whereas in the sleepwalking example the accused performs four
acts, Moses performed 14
 So in other words, automatism has a little goal-directed behavior, lack
of conative capacity would have much more