THESE NOTES ARE refresher notes and are not complete

The notes very shortly sets out basic criminal law aspects which are relevant to criminal
procedure and may not be shared with students outside of the CRP 3241 (2024 class)

For detailed information please refer to you’re the Snyman criminal law textbook and
Criminal law notes from your previous year of study.

You should still have the information as most of you would have completed criminal law
in 2023.

Should you require more information you are welcome to consult with me.

Your primary source of information remains the textbooks and these should be consulted.

Please note as per my many previous reminders criminal procedure cannot be studied in
isolation.

I have previously also provided some definitions; these are not complete and you should
reference your Criminal law textbooks for the most relevant definitions.

There is also a link to a YouTube video on Moodle

1
REMEMBER: WE HAVE 3 GROUNDS WHICH EXCLUDES THE ACT:

1. ABSOULTE FORCE

2. ABSOLUTE IMPOSSIBILITY

3. AUTOMATISM

THEN WE HAVE 1 GROUND WHICH EXCLUDES THE RESULT (CAUSATION):

NOVUS ACTUS INTERVENIENS

THEN WE HAVE 7 GROUNDS WHICH EXCLUDES UNLAWFULNESS:

1. PRIVATE DEFENCE

2. NECESSITY

3. IMPOSSIBILITY

4. CONSENT

5. PRESUMED CONSENT

6. OFFICIAL CAPACITY

7. OBEDIENCE TO ORDERS

THEN WE HAVE THAT EXCLUDES CULPABILITY:

1. CRIMINAL INCAPACITY
2. FACTORS EXCLUDING INTENT
3. FACTORS EXCLUDING NEGLIGENCE – REASONABLE PERSON TEST

2
 CONDUCT- FIRST ELEMENT OF CRIME

INTRODUCTION

Conduct / behaviour/ omission/ actions are all the same concept.

Conduct is the first element of crime

A thought is not a crime and thoughts are not punishable

Uttering of words may be a crime

Conduct is an Act or omission

The following are excluded from conduct:

1. Thoughts that you did not act on

2. Non-human conduct except where an animal is used as a tool by a person – for example
if you tell your dog to bite someone you may be charged with the crime of assault because
you used the animal as a tool.

3. Involuntary muscle movements

Definition:

Conduct: voluntary human commission (positive act) or omission (failure to act)

Important: act must be voluntary

Requirements for an act:

1. There must be an act; the act must comply with the definitional elements of the crime

An Act may be:

Positive conduct – a physical act

Or

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 An Omission (negative conduct, failure to act)

The act will form both the basis of liability and the limitation of liability:

You cannot investigate unlawfulness if you have not determined whether the accused persons
conduct complied with the definitional requirements of the act involved.

The act also limits liability because it has to be described in such a way that one can determine
which conduct is excluded from the investigation.

Acts are not only intentional acts but also include unintentional acts such as negligent
acts.

2. Voluntariness:

Act must be voluntary

Definition: a person’s bodily movements are subjected to her will or intellect.

An act will be voluntary if you can subject your bodily movements to your will or intellect

You make a decision about your conduct and the execute the decision

You have the ability to prevent the conduct if you apply your mind

If conduct cannot be controlled by will or intellect then the conduct will be involuntary

If the voluntariness is excluded then conduct is excluded

Voluntariness can be excluded by:

1. Absolute force:

Definition:

A person cannot subject his bodily movements to his will or intellect because another person
took physical control over his bodily movements. The accused cannot control his bodily
movements due to physical force being applied to his body by another person

Exist where someone or something takes control over another person’s bodily movements.

4
Your ability to subject your bodily movements to your will or intellect are excluded by another
person taking physical control over your bodily movements

You must distinguish absolute force from relative force.

Effect of absolute force:

Absolute force excludes the voluntariness of the act and thereby excludes the act.

Relative force:

Definition:

A person has the ability to subject his movements to his will or intellect however subjecting his
bodily movements to his will or intellect will result in him suffering some harm. It is where a
person places you under indirect force by for example threatening to kill you if you do not act as
requested.

You do have the ability to subject your bodily movements to your will or intellect

However, subjecting your bodily movements to your will or intellect will result in you suffering
some form of harm.

Your conduct may however be justified by a recognised defence

Effect of relative force:

Relative force may only exclude unlawfulness.

2. Automatism

Def: automatism is a physical state wherein a person acts mechanically or automatically in

reaction to an external stimulus.

A state wherein a person act mechanically or automatically

Examples are reflex movements

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If a person suffers from amnesia it does not mean he acted in a state of automatism

Involuntary conduct not attributable to mental disease

Effect: automatism excludes voluntariness and therefore it excludes the act.

Automatism due to involuntary conduct:

Person is mentally sane

Momentarily behaves involuntarily

Because of some external trigger

Formal requirements to proof the defence:

Onus is on the state to proof above reasonable doubt that the act was voluntary.

Defendant then has to rebut and must lay a foundation for his defence of automatism by leading
expert evidence and he must proof on a preponderance of probability that he acted involuntary

The accused ipse dixit, his own version is insufficient, and he must provide supporting evidence.

Are there any exceptions to the defence of automatism?

A person may gain criminal liability even if he acted in a state of automatism if antecedent liability
exists

Antecedent liability:

Definition: liability gained by a person before the commencement of an unlawful act. The
person is held liable due to his prior knowledge.

The person has prior knowledge

He still acts in a way, which can result in gaining criminal liability

You can be held liable for crimes requiring negligence

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Example: if you know you suffer from epileptic fits or that you have a tendency to black out and
you proceed to drive a car with the hope that you do not black out or have a fit. You then while
driving suffer a black out and injure a person.

You cannot rely on the defence of automatism because your voluntary act was performed when
you started to drive.

You gain your liability prior to the incident because the actions, which you started, set in motion
the casual chain of events

Effect: the defence excludes intent but not negligence and the person may still be guilty of a
crime requiring negligence.

Conclusion:

Antecedent liability is the exception to the rule that a person can never be found guilty due to
automatic behaviour.

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 ACT – OMISSION

a) Introduction

Is a failure to act.

Is where there is a duty on a person to act in a certain manner and that person fails to act as
required.

Only in exceptional circumstances will you be compelled to act.

There is no general obligation on people to protect other people from harm (beware exceptions)

b) Legal duty to Act positively (to do Something)

Omission will only be punishable if there is a legal duty on someone to act.

Moral duty is not the same as a legal duty.

c) Omission definition is then:

to omit to engage in active conduct in circumstances in which there is a legal duty to act positively”

If no express and clear rule exist indicating that there is a legal duty then a legal duty will exist if
the legal convictions of the community demand that there must be such duty

d) Legal duty:

No closed list

1. Legislation may place a duty on someone to act positively

For example: you must complete a tax return

You must not leave the scene of a motorcar accident

2. Common law may create a legal duty

3. Order of court: the court may make an order, which you have to comply with

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 4. A person in a protective relationship with another person: a parent has a duty to feed his
child – based on the legal convictions of the community.

5. Accepting control of a dangerous object and then failing to properly control the object.

6. Duty arising out of the position you hold – example a police officer must act if a person
requires assistance.

e) Omission must be voluntary

The person should have been able to subject his bodily movements to his will or intellect

Just as with active conduct the omission must be made voluntarily

Omission will be voluntary if it was possible to perform the act

Objective impossibility of discharging a legal duty is always a defence if the form of conduct with
which X is charged is an omission

If you are charged with a crime due to an omission, you may rely on a defence of impossibility

f) Requirements for the defence of impossibility

1. The legal provision infringed must place a positive duty to act on the person

2. It must be objectively and physically imposable to comply with the relevant provision

Objectively – must be impossible for any person to comply with the law

It must be impossible

3. Cannot rely on impossibility if you are the cause of the situation you are in. This is however
subjected to critique

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 ACT –POSSESSION

Introduction

Crimes created by statute may prohibit a person from having certain items in his possession.

If an act criminalises the possession of an object the act consists of the possessing or owning the
prohibited materials.

Possession has two elements:

1. Corpus: Physical element

Objective in nature

2. Animus: Mental element

This is subjective

Describes the intention with which you control an object

Forms part of the description of the act required to establish criminal liability

Corpus and Animus must be present at the same time.

ANIMUS ELEMENT

Animus has two sub requirements:

You must have knowledge of the article in your control.

You must be aware of the fact that you are exercising control over the object.

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 SECOND ELEMENT: CAUSATION

After determining that a person acted you must ensure that the act complies with the definitional
elements of the crime you want to charge him with.

This means that you must examine the crimes requirements and determine if he acted in the
same way

For a person to be guilty of a crime his acts must comply with the totality of the requirements of
the crime

Definitional elements also describe the circumstances in which an act must take place

Causation is required by the definitional elements of the crime because the casual link is a
specification of the circumstances in which the act is punishable.

Fulfilment of the definitional elements must not be confused with the requirements of unlawfulness

Contains the elements which the prosecution needs to proof in a criminal trial.

a) Summary of the rules relating to causation:

1. Person must be the factual cause and legal cause of the result

2. Conditio sine qua non – condition without which result will not have occurred. Act is the
factual cause of the death. If the Act cannot be removed without removing the result then
there will be factual causation.

3. Factual causes are insufficient must also have a legal cause

4. Legal causation is dependent on policy considerations

5. Court may invoke any one of the theories to determine whether it is reasonable and fair
to regard the conduct as the cause of death

b) Terminology

Formally defined crimes: type of conduct is prohibited irrespective of the result of the conduct
for example possession (conduct crimes)

Materially defined crimes: conduct which causes a certain condition is prohibited. In other
words the result of the conduct is prohibited. Example murder, The act consist of causing a certain
result that result is the death of a person. (result crimes)

Emphasis is on causing a result

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c) Discussion

Materially defined crimes:

Question is always: did the conduct of X cause the prohibited situation?

In other words you must ask is there a causal link (Nexus) between the conduct and the prohibited
situation?

We will only use the crime of murder and culpable homicide as examples.

NB must cause the death at the time and place where victim died.

FACTUAL CAUSATION

a) General

Must first determine whether you where the factual cause of the death – S v Daniels

Must investigate the circumstances surrounding the prohibited situation and you then with
reference to general human knowledge and experience you must decide whether or not the
prohibited situation flows from the conduct

You objectively look back at the situation.

- How do we check that an act is indeed the factual cause of the prohibited situation?

We use Condition sine qua non as a measure

– condition without which _____it cannot exist

You ask what would have happened if X conduct did not take place. In other words you think
away x’s conduct.

If the result would not have occurred without X’s conduct then X is the factual cause of the result.

We also sometimes see that people use the “but for test”

You must first determine that there is a causal connection then you can ask but for.

Here we also take into account what knowledge and experience tells us

Factual causation has a wide breach

Remember that causation consists of a second part – both must be present

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 LEGAL CAUSATION

Can only be determined if factual causation exists

Factual causation is not sufficient to establish a causal link between the act and the prohibited
result.

Legal causation must exist

Strict criteria to be applied – based on normative values or policy considerations

a) Criteria applicable to legal causation

Firstly the criterion must be flexible and the most important consideration in determining legal
causation is what is fair and just in the situation ( Mokgethi)

b) Theories of causation

1. Individualism theory

Means you look for a single condition as the legal condition

Must look which cause is the most decisive in other words you must look for only one individual
condition

This theory depends on coincidence – coincidence isn’t sufficient

S v Daniels – Court reject the theory, Judges refused to accept that only an act which the
proximate of the death could qualify as its cause.

2. Adequate causation

Causal relationship is based on generalisations which an ordinary person may make regarding
the relationship between a certain type of event and a certain type of result, and on the contrast
between the normal and abnormal course of events

Def: an act is a legal cause of a situation if, according to human experience, in the normal course
of events, the act has the tendency to bring about that type of situation.

If the result is something that is unpredictable or unlikely then there is no adequate relationship
between the result and the act. The act then would not have caused the result

All the circumstances must be taken into consideration

The criterion is: the knowledge of a sensible person who in addition has the extra knowledge
which X may have

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The totality of human knowledge must be taken into consideration

Objective test:

You look forward from the moment of the act and you ask whether the result was to be expected.

3) Novus actus interveniens

Meaning a new intervening event

This means that a new event occurred between X’s act and the result.

This new event breaks the chain of causation

This event prevents X’s conduct from being the cause of the prohibited result

NAI = an unexpected, abnormal or unusual event

Effect: causality is negated

The question which now arises is how do we determine whether an event qualifies as a
Novus Actus?

Act is NAI if it is a completely independent event and which has nothing to do with X’s Act.

NAI = an unexpected, abnormal or unusual event

4) Foreseeability theory

Act is cause if the situation is reasonably foreseeable for a person with normal intelligence

Test confuses the requirement of causation with culpability

Policy considerations play the most important role when determining causation

5) Criterion applied by court: Policy considerations

you cannot single out one theory

Court adopt a flexible approach

Court must be guided by policy considerations this means that the courts must apply the theory
which is reasonable, fair and just in the circumstances.

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Confirmed by S v Mokgethi

Theory of adequate causation preferable. – self study because we do not have time in the
lectures

X does not have to be the sole cause of the death he must only be a cause

6) Causation and common purpose

If X and Y act together and their common acts leads to Z death they will both be liable for Z death
on grounds of the common purpose doctrine.

7) Causation by omission

Here the question is whether the result would have occurred if in place of X’s omission there had
been a positive act on his part

Act must be in accordance with his legal duty

Instead of thinking away the act you imagine a positive act taking place.

v. Novus actus foreseen by perpetrator

if a NAI was foreseen or planned by the perpetrator then the act cannot amount to a NAI.

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 THIRD ELEMENT:UNLAWFULNESS (JUSTIFICATION)

General discussion

The concept: unlawfulness

Act must also be unlawful in other words persons act must not be justified.

Query into unlawfulness is an enquiry to establish the absence of a justification for conduct
complying with the definitional requirements.

Unlawfulness means that the act is contrary to the letter of the law or the legal rule in question.

5. Ground of justification

Question: when is conduct which complies with the definitional elements not unlawful?

Unlawfulness will be excluded if a ground of justification exists.

For example: Private Defence

Necessity

Consent

Official capacity

Justification – not a numerous clauses – not a closed list.

Each ground of justification is limited

6. Unlawful means contrary to the community’s perception of justice or the legal

convictions of the community (NB)

DEF: Unlawfulness consists in conduct which is contrary to the community’s perception of justice
or with the legal convictions of society.

When determining unlawfulness you must consider the constitutional rights such as human
dignity, equality, and the advancements of human rights.

The communities’ legal convictions may deem the act in the particular circumstances lawful.

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8. Subjective considerations also relevant in establishing unlawfulness

The test to determine unlawfulness is an objective test with subjective elements.

A person who relies on a ground of justification must be aware of the circumstances which render
her conduct lawful

She must consciously act lawfully

She cannot rely on coincidence

9. Difference between unlawfulness and culpability

Unlawfulness is a judgment regarding the Act and an objective test

Culpability is a judgment regarding the person and is a subjective test

10. Erroneous belief in the existence of ground of justification: conduct remains unlawful

Person incorrectly believed that a ground of justification exists.

All the emphasis may not be placed on subjective factors

Objective factors must be present and taken into account

If X subjectively beliefs that a ground for justification exist where in fact there is none then the
conduct remains unlawful.

Putative form of justification isn’t a ground of justification.( to think conduct is justified does not
make it so)

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 UNLAWFULNESS PART 2: PRIVATE DEFENCE

Definition:

X will be acting in private defence if he in an attempt to repel an unlawful human commenced or

imminent at if his attack on his life, limbs, or property injures or kills Y (the attacker) if his conduct
was necessary to protect the interest. The defensive act may not do more harm than necessary
to ward off the attack

Use of force to repel an unlawful commenced, or imminent, attack on her life, somebody else’s
life, Bodily integrity, property or other legal interest,

The defensive act must be necessary to protect the interest threatened

Must be directed at the attacker and must be reasonably proportional to the attack.

The easier way to remember the definition: you must ask the following questions:

1. Was there an unlawful human attack of any nature on any rights of the person

2. Was the defence directed at the attacker and was it proportional to the attack.

If the answer to both questions is yes then you know the person acted in private defence. 3

Requirements for the defence can be separated into two sections: the requirements for the
attack and the requirements for the defence

REQUIREMENTS FOR THE ATTACK

1. There must be an attack

Can be an act or an omission

For an act to be unlawful it must be a human voluntary act – involuntary muscle movements does
not qualify as an unlawful attack.

The attack may be an omission: if there is a duty on a person to act and said person neglects to
act that omission may be seen as an attack

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2. Attack must be unlawful

Cannot act in Private defence against lawful conduct

Attack must be a Human attack.

Private defence against private defence isn’t possible

A prearranged fight excludes the possibility of raising private defence – Jansen

Animals cannot act unlawfully if however an animal is used as an instrument then the person
acted unlawfully and then you can rely on private defence

attacker does not need to act with culpability: you can act in private defence against a person who
lacks criminal capacity for example a person with a mental disability.

3. Attack must be directed at an interest which legally deserves to be protected

May act in private defence to protect any legal interest.

The attack need not be against a person’s life.

Property can be protected in private defence

4. Attack must be imminent or commenced

Cannot act in private defence against an uncertain future attack

You cannot act in private defence against an attack which has already ended or passed.

However you do not have to wait for the first blow to fall before you may act in private defence

You can act in private defence to prevent an attack

The attack must have commenced or be imminent. The attack may not be a passed event -

5. Attack may be against a third party

NB Private defence does not equal self defence because private defence allows you to act on
behalf of a third party.

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Attack may be directed at a third party:

May defend a person other than the attacked

Case law: Van Vuuren: You may for example protect the dignity of a third party

THE REQUIREMENTS OF THE DEFENCE

1. Defensive conduct must be directed towards the attacker

Only the attacker may suffer harm or damage

2. Defensive act must be necessary to protect the interest threatened

The manner in which you defended yourself had to be necessary

The defensive act must be the only way in which the attacked party can ward off the threat to his
rights or legal interest.

May only use private defence if the ordinary remedies usually available to a person in the situation
aren’t available to the defender or if it would be impossible to rely on those remedies

You must do as little damage as possible – proportionality requirement

Under this requirement you must also take note of excursus:

Is there a duty to flee?

The question is must a person who is attacked flee if she can do so to avoid the attack?

No definite answer.

Certain set circumstances does not require the defender to flee, these situations are:

1. If X can ward of the attack by injuring Y instead of killing Y, then se may do so

2. If the act of fleeing would expose the defender to danger or harm then the defender may act
proactively

3. Law does not require you to flee your own house

4. Person lawfully performing their duties does not need to flee 7

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3. There must be a reasonable relationship between the attack and the defensive act

(The means used to protect yourself)

The way in which you act must be necessary

You cannot shoot to kill someone who attacks you with a fly swatter.

The weapons or the method you use to defend yourself must also be necessary however the
weapons used during the attack and the defence does not have to be the same type of weapon.

A proportional relationship between the nature of the interest threatened and the nature of the
interest impaired: This means that the defensive act may harm an interest which differs from the
one the defender is protecting. – Ex Parte Minister van Justisie: in re S v Van Wyk

A precise proportionality between the extent of the injury inflicted or threatened to be inflicted by
the attacker and the injury inflicted by the defender isn’t required.

How do we determine whether the manner in which X defended himself was necessary or
proportional (reasonable relationship existed)?

You use the following factors as determined by the court in S v Steyn:

1. Relationship between the parties

2. The ages, gender and physical strength of the respective parties

3. Place where the attack occurred

4. Nature, extent and scope of the attack

5. Nature of the weapon used during the attack

6. Nature and extent of the damage or injury which the attack would have caused

7. Objects available to X during the time of the attack

8. Nature of objects used to ward of the attack

9. Nature and extent of injuries the defence would likely have caused.

If a person could have averted the attack by resorting to conduct which was less harmful than the
conduct actually used by her and if she inflicted injury or harm to the attacker which was

21
unnecessary to overcome the threat then her conduct does not comply with the requirements for
private defence

4. You must be aware of the fact that you are acting in private defence

Cannot accidentally act in private defence

Cannot act in provoked private defence

Private defence based on coincidence cannot exist

Effect of private defence:

Justification which excludes unlawfulness

Test for private defence

If X thinks she’s in danger, but in fact she isn’t, or that she is being unlawfully attacked, while the
attack is in fact lawful, the defensive measures cannot constitute private defence.

Although the act may be unlawful liability may still be excluded due to a lack of culpability.

The defenders mistake may still exclude culpability this situation is refered to as putative private
defence.

Test for private defence is objective – objectiveness used to distinguish between private defence
and putative private defence

Court should not use an arm chair approach- court must place itself in the situation of the defender
and remember that the defender had to make a split second decision. In other words the court
must ask would a reasonable person in the same circumstances have acted in the same way.

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 PUTATIVE PRIVATE DEFENCE

Derived from the words: putare, which means to think.

This is not true private defence

In other words the person thinks she is acting in private defence while she in reality isn’t.

The defence is where a person wrongfully believes that they are acting in private defence.

Putative private defence excludes intent but not unlawfulness. You can still be guilty of a crime
requiring negligence.

Exceeding the bounds of private defence

If the defensive conduct exceeds the boundaries of private defence then the act becomes
unlawful.

If the defender causes more harm or injury, than is justified by the attack, to the attacker then her
conduct is unlawful.

The defender then becomes the attacker

When you want to determine whether the defender is guilty of a crime and of which crime she is
guilty you must distinguish between the situation in which the defender killed a person and where
she only injured a person.

Situations in which the defender killed:

To determine whether the defender who exceeded the bounds of private defence is guilty of
murder, culpable homicide or not guilty of a crime you apply the ordinary test to determine
culpability (negligence of intent)

a) If X (the original defender) is aware of the fact that her conduct is unlawful and that the conduct
will result in Y’s death or if she subjectively foresees the possibility and reconciles herself with it
(dolus eventualis) then she is guilty of murder

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b) If X has no intention to kill but she ought to have foreseen that she might exceed the bounds
of private defence and that she might kill the aggressor then she was negligent and can be liable
for culpable homicide

c) If she did not foresee the possibility of death and it cannot be said that she ought to have
reasonably foreseen it then both intent and negligence is excluded and she isn’t guilty of a crime.

Cases where X only injures:

a) She will either be not guilty or be guilty of assault. Assault can only be committed intentionally.
If X subjectively knew or foresaw the possibility that she might exceed the limits of private defence
and in so doing would or could injure Y, then she had the necessary intention to assault and is
guilty of assault. If however X did not foresee this possibility then the intention to assault is absent.

You may be held liable for crimes requiring intent or negligence ( Ntuli 1975)

If you knowingly and intentionally exceed the boundaries of private defence then you may be
guilty of crimes requiring intent ( Trainor 2003)

Def: X’s conduct resulted in more damage than what is justified by the attack.

Effect: your conduct is unlawful.

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 UNLAWFULNESS: NECESSITY

GENERAL DISCUSSION

Define necessity

Definition: a person acts in necessity, and her act is therefore lawful, if she acts in protection of
her or somebody else’s life, bodily integrity, property or other legally recognised interest which
is endangered by a threat of harm which has commenced or is imminent and which cannot
be averted in another way, provided the person is not legally compelled to endure the danger
and the interest protected by the protective act is not out of proportion to the interest infringed
by the act. It is immaterial whether the threat of harm takes the form of compulsion by a human
being or emanated from a no human agent such as a force of circumstances

What does this mean?

1. A person acts in defence

2. To protect her or somebody else’s life, bodily integrity, property or other legal interest 16

3. There must be an imminent or commenced attack or threat

4. Defensive act must be the only way to ward off the attack

5. Interest protected must be proportional to interest threatened

6. Threat or attack does not need to be a human threat or attack

7. A third party suffers damage

8. Must be in response to the threat or attack

In other words:

X acts in necessity if he protects a legal interest against a lawful or unlawful human attack or
inevitable evil

In the process a third parties legal rights are infringed

And the proportionality requirement must be complied with

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This requirement is wider than private defence.

SITUATIONS WHICH MAY GIVE RISE TO NECESSITY:

1. Compulsion: example, you are threatened that you will suffer harm if you do not commit a
punishable act. The situation of emergency is the result of human conduct

2. Inevitable evil: state of emergency is the result of non-human intervention for example acts of
nature. See examples in textbook 17

KILLING OF ANOTHER PERSON OUT OF NECESSITY

a) Killing another in necessity may constitute a complete defence:

May a person who is threatened kill another and can he then raise necessity as a defence?

This situation is only relevant if the threatened person was in mortal danger

Mortal danger may stem from compulsion

X threatens to kill Y if Y doesn’t kill B.

Can also arise from an event brought on by a person

b) In these circumstances Necessity excludes the culpability

The interest protected wasn’t greater than the interest affected therefore the conduct does not
comply with the requirements of necessity

TWO TYPES OF COMPULSION

Absolute:

Vis absoluta

X does not commit a voluntary act. The attacker takes physical control over the bodily functions.
The effect is that voluntariness is excluded. In other words absolute compulsion excludes conduct.

26
Relative:

Vis compulsiva

There is a voluntary conduct. X has a choice between acting in a certain manner or suffering
harm. This compulsion gives rise to necessity and excludes unlawfulness.

DIFFERENCE BETWEEN PRIVATE DEFENCE AND NECESSITY

Private defence necessity

Origin of the danger: Always stems Origin of the danger: unlawful human attack or from
from an unlawful human attack chance circumstances such as acts of nature

Defensive act is always directed at an Defensive act are directed at either the interest of
unlawful human attack another party or a mere legal provision (law)

Unlawful attack is required- animal Unlawful attack not required – this means that where an
used as an instrument animal spontaneously attacks you then you act in
necessity

A third party may not suffer damage A third party suffers damage or harm

27
 UNLAWFULNESS: IMPOSSIBILITY

Ground of justification

Lex Non cogit ad impossibilia:

the law does not expect the impossible from people

Impossibility def:

It is a ground of justification which excludes unlawfulness where X’s behaviour takes on the form
of an omission and it was objectively and relatively impossible for X to comply with his legal duty

Requirements:

1. Legal duty

There must be some provision which compels you to act positively

You must neglect to comply with that duty

2. Impossibility must be objective: it should be impossible for any person to comply with his
legal duty

Mere inconvenience isn’t sufficient

3. Conflicting legal duties

Must comply with at least one of the legal duties

4. Provoked impossibility

Closed settlement case:

Defence can succeed even if you are the cause of the impossibility

5. Awareness of impossibility:

At the time you must know that the impossibility exists

Absolute impossibility:

Def: exist where the failure to act positively is due to the fact that X does not have control over
his bodily movements.

28
Effect: excludes voluntariness and thus it excludes conduct

Relative impossibility

Ground of justification

Excludes unlawfulness

Putative impossibility: X believes that his acting in impossibility while in actual fact it is not the
case

Effect: excludes intent

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 CAVEAT: A LOT OF NEW CASES ON THE TOPIC AND MUST BE CAREFUL WITH THIS

UNLAWFULNESS: CONSENT

How to answer a question based on consent

GENERAL

Consent by the person who would otherwise be regarded as the victim may, in certain cases,
render X’s conduct lawful.

Can only be a justification for certain crimes under certain circumstances

You cannot for example escape liability for the crime of murder by raising the defence of consent.

Consent may however exclude the unlawfulness for the crime of theft

Consent may also exclude culpability

Requirements for the defence

1. The crime and the type of act must be of such nature that the law recognises consent to
the commission of such an act as a ground of justification:

Consent can only be a defence where the crime is directed at an individual

However that does not mean that the individual can consent to all crimes

Consent does not serve as a justification if the absence of consent forms part of the definitional
elements of the crime

In some crimes consent by the injured party does not constitute a defence the best example is
murder

In other crimes consent is a justification for the crime

2. Consent must be given voluntarily and without coercion

Determining voluntariness is a factual question

Consent obtained by fear, violence or intimidation isn’t voluntary

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Submission isn’t consent

3. Person giving the consent must be mentally capable of giving the consent

The person who consents must know the nature of the act and its consequences

4. Consenting person must be aware of the true and material facts regarding the acts to
which she consents

Material facts – depends on the definitional elements of a crime

Here it is important to know that if the consenting person is mistaken regarding the act (error in
negotio) then there isn’t valid consent

If the person is aware of the act but is mistaken regarding the consequences of the act then valid
consent exists

Error in personae may also exclude consent

5. Consent may be given expressly or tacitly

In other words a person can through words or conduct give his consent

6. Must be given before the otherwise unlawful act is committed

Approval after the fact does not render the act lawful

may be revoked any time prior to the act

7. Consent must be given by the complainant herself

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 UNLAWFULNESS:PRESUMED CONSENT

Definition:

Infringement of another’s interest

Act complies with definitional elements of a crime

Furthers or protects the interest of Y

Y’s consent cannot be obtained

Reasonable grounds exist to assume that Y would have consented

Requirements for the defence

1. It must not be possible to obtain consent

2. There must be reasonable grounds for assuming that, had Y been aware of the material facts,
she would not have objected.

3. Reasonable grounds for assumption must exist at the time of the act

4. Actor must know at the time of acting that reasonable grounds for assuming that Y would not
object exists

5. X must intend to protect or further Y’s interest

6. X’s conduct must not go beyond the conduct to which Y would have presumably consented

7. Not required that X should have succeeded in protecting or furthering Y’s interest.

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 UNLAWFULNESS: TRIFLING NATURE OF ACT AS A DEFENCE

Description of defence

X commits an act which is unlawful but the degree in which she contravenes the law is minimal,
that is, of a trivial nature, a court will not convict her of the crime in question

Principle is de minimis non curat lex – the law does not concern itself with trivial issues

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 FOURTH ELEMENT: CULPABILITY

INTRODUCTION

Compliance with the definitional elements of conduct which is unlawful is not sufficient to render
him criminally liable

The conduct must also be culpable

Culpability means that in the eyes of the law grounds for blaming X personally for his unlawful
conduct must exist

Could one in all fairness have expected X to avoid the wrongdoing?

Culpability includes intention or negligence

Culpability ensures that nobody is punished for harm which he commits accidentally or of which
he was not or could not have been aware.

Culpability and unlawfulness

Question only arises after unlawfulness has been established

Unlawfulness of the act is determined by criteria which are applicable to everybody in society,
whether rich or poor, clever or stupid, young or old.

The focus is on the perpetrator as an person and an individual.

Question is whether the person in the light of his personal aptitudes, gifts, shortcomings and
knowledge and of what the legal order may fairly expect of him can be blamed for his
wrongdoings.

Terminology

Mens Rea – a guilty mind

Culpability – Culpa – blame thus blameworthiness

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Culpability presupposes freedom of will

Presupposes that man is free to overcome the limitation of his nature and to choose whether to
engage in conduct for which he will be held liable.

Freedom of will must, for the purposes of criminal liability, be construed as man’s ability to rise
above the forces of blind causal determinism; that is, his ability to control the influence which his
impulses and passions and his environment have on him

One should merely be able to say that, in particular, one should merely be able to say that. In
particular circumstances and in the light of our knowledge and experience of human conduct, X
could have behaved differently, that had he used his mental powers to the full, he could have
complied with the provisions of the law.

Two forms of culpability

Intent - Dolus

Negligence – Culpa

Principle of contemporaneity

The unlawful act and the culpability must exist at the same time.

No crime is committed if at the time of acting the culpability was absent

This doctrine was rejected by South African courts and is no longer used because the doctrine
was in conflict with the requirements of culpability – Bernardus

The normative character of culpability

Grounds upon which, in the eyes of the law, X may personally be blamed for this unlawful act.

It must have a normative character – we measure his conduct against a certain norm or standard

This means that, to determine whether X acted with culpability, one must enquire whether the law
could in all fairness have expected X to act differently

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The norm is external to the actor

Objective standard – one by which all people are measured.

In the form of Negligence the normative character is: would the reasonable person in the same
circumstances have acted in the same way

The test for intention is subjective

Intention requires compliance with the following:

1. X was aware of the circumstances which made his act correspond to the definitional
elements of the crime –

First ground is the awareness of the unlawfulness

This is an important part of the enquiry

It colours the intention

2. He was capable of acting in accordance with insights into right and wrong

He willed the commission of the act constituting the crime

Second ground refers to criminal capacity at the time of the commission of the act

Without capacity you cannot be blamed for your conduct

3. The third ground is the will to do the act

Other factors may exclude the culpability

The circumstances surrounding the act must also be investigated to determine whether
the person acted with culpability

4. Only in exceptional circumstances - The circumstances surrounding the situation must be

taken into consideration – the circumstances must be such that the law would have
expected X in the circumstances to have acted differently

Objective test

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Culpability and criminal capacity

Must have criminal capacity before he can form intent

That means that he must have the mental capacity or ability to distinguish between right and
wrong and to conduct himself in accordance with the appreciation.

Capacity is not a separate, independent requirement, but forms part of the requirements of
culpability

CONCEPT OF CRIMINAL CAPACITY

Meaning of criminal capacity

Must have criminal capacity before you can determine intent

Mental ability required by law to be held responsible for his unlawful conduct.

Mentally ill persons and children cannot be held liable because they lack the normal mental
abilities that a normal adult will have

Must have the ability to appreciate the wrongfulness of his conduct and to act in
accordance with said appreciation

If either one is absent then the person lacks criminal capacity

Capacity and unlawfulness

May only be determined after unlawfulness has been determined

Person who lacks capacity is nevertheless capable of committing an unlawful act

Practical importance – see for example the fact that a person can act in private defence against
a person who does not have criminal capacity but who acted unlawfully.( pg 156 facts)

Capacity and culpability

Before any person can be said to have acted with culpability it must be clear that at the time which
he acted he had criminal capacity. – in other words he had the required mental ability

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Culpability cannot exist without capacity

If you say a person acted culpably it means that in the eyes of the law there are reasons to blame
him for his unlawful conduct.

One of the reasons he can be blamed for his conduct is because he has criminal capacity.

If at the time of the conduct he lacked criminal capacity he escapes conviction due to his lack of
capacity and then you do not have to enquire into intent or negligence.

Capacity and intention

Capacity does not equal culpability

Intention is determined by determining what knowledge a person had.

Two different concepts:

Intention – what knowledge he had

Capacity – what his mental abilities were.

Ability to appreciate unlawfulness of his conduct and to act in accordance with the
appreciation

Do not confuse the awareness of unlawfulness with his capacity

Awareness of unlawfulness deals with X’s knowledge or awareness of the unlawfulness of his
act.

Capacity deals with X’s ability to appreciate the unlawfulness of his conduct and to conduct
himself in accordance with such appreciation

X must have capacity at the time of his conduct

A person may have at a certain time have capacity and at another time lack capacity

Mentally disturbed person may for reasonably short periods be mentally perfectly normal and
therefore have criminal capacity – lucidum intervallum

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Must only have capacity at the time that you acted.

Two psychological requirements for capacity

Capacity is determined by using two psychological factors –

Cognitive function – related to a person’s intellect, his ability to perceive, to reason and to
remember in other words the mental component. The ability to appreciate the wrongfulness of
one’s conduct or to appreciate the difference between wrong and right – sec 78(1) of the Criminal
Procedures Act

Conative mental function – ability to conduct himself in accordance with his insight into wrong
and right. Persons ability to control his actions in accordance with his insights.

In other words he has the ability to make a decision, set himself goals, pursue it and is able to
resist impulses to act contrary to his incites

In order for capacity to exist both elements must be present.

Absence of capacity distinguished from involuntary behaviour

Inability to act in accordance with the appreciation of the wrongfulness of the act must not be
confused with the inability to subject your bodily movements to his will or intellect.

Inability deals with the question whether or not he acted – if inability to act is absent then there is
no conduct

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 CULPABILITY PART 4- MENTAL ILLNESS

THIS HAS ALSO BEEN SUBSTANTIALY CHANGED BY CASE LAW

THE BASIC ARE THE SAME AND CAN ALSO BE FOUND IN THE CRIMINAL PROCEDURE
TEXTBOOK

INTRODUCTION

Defence governed by legislation

THE TEST TO DETERMINE CRIMINAL CAPACITY

Section 78 (1) of the Criminal Procedures Act contains the requirements for the defence

CPA talks about criminal responsibility

Analysis of Section 78 (1)

The test stands on two legs

The first leg is the pathological leg – biological test

The second leg – psychological leg of the test – can he appreciate the wrongfulness of his conduct
and can he act in accordance with the appreciation

This is a combined test because it involves the physical and the psychological parts

Mental illness/ defect

The first part of the test is whether he suffered from a mental illness / defect

Section 78 and Sec 79 requires that the presences of a mental defect or illness must be
determined with reference to psychiatric evidence

Mental illness or defect does not refer to only set defects or illnesses.

No general symptom to use to determine what constitutes a mental illness or defect

CPA – does not indicate what the difference is between a mental illness or defect and the CPA
doesn’t define either one of the terms

The evidence lead by the psychiatrist will usually indicate what the difference between the terms
is.

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Mental defect is usually categorized by an abnormally low intellect which is usually evident already
at an early stage and is of permanent nature.

Mental illness usually manifests later in life and is not necessarily of a permanent nature

It isn’t necessary to prove that a mental illness or defect originated in X’s mind can rely on the
defence even if the cause originated somewhere else.

Duration does not need to be of a permanent nature

Mental illness must be present at the time of the act

If act was committed during a lucidum intevallum then he does not lack criminal responsibility

Mental illness or defect is a pathological disturbance of the mental faculties

Disturbance must be prescribed due to mental disease

If a person was declared mentally ill under civil law that does not automatically make him mentally
ill under the provisions of the CPA

The civil declaration of mental illness may be taken into account by the court

a court cannot make a judgment regarding criminal non responsibility without hearing expert
evidence by a psychiatrist

If an allegation is made that the accused suffered from a mental defect then the court must direct
that an psychiatric enquiry be made in terms of Section 79 of the CPA

Psychological requirements for criminal non responsibility

Fact that you have a mental illness or defect is insufficient to warrant a finding that he isn’t
criminally responsible

The mental illness must have one of the following effects on his abilities:

1. it must exclude his capacity to appreciate the wrongfulness of his act

Or

2. It must exclude his ability to act in accordance with the appreciation of the wrongfulness of his
conduct

The two apply in the alternative.

If either one of the two is absent then criminal responsibility is excluded.

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Capacity to appreciate wrongfulness of his conduct

At the time of the act must not be able to appreciate the wrongfulness of his act

Capacity to act in accordance with the appreciation of wrongfulness

At the time of the act must not be able to act in accordance with his appreciation

Mental illness and automatism

Do not confuse the absence of liability due to mental illness with automatism.

Burden of proof

Sec 78 of CPA –

Presumed to be mentally sane and criminally responsible

Party who raise the defence carries the burden of proof – if X raises the defence he must lay a
foundation for the defence

If accused raises the defence then he discharges the onus by proving on a balance of probabilities
that he was mentally ill at the time of the act

Verdict

Section 78(6) of CPA

If defence is successful then court must find him not guilty

Release of the accused

Release of the accused whose been detained in a psychiatric institution after they’ve been found
mentally ill is governed ny the Mental Health Care Act

Diminished responsibility

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Sec 78(8) of CPA

If X at the time of the commission of the Act was criminally responsible for the Act but that his
capacity to appreciate the wrongfulness or to act in accordance with an appreciation of its
wrongfulness was diminished by reason of mental illness or defect the court may take the fact of
such diminished responsibility into account when sentencing him.

Incapacity to stand trial

Mental condition at the time an accused has to stand trial

Mental condition at the time of the Act now becomes irrelevant

See Sec 77 of CPA

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 CULPABILITY PART 5 – INTENTION

Description of the concept

X acts with his will directed towards the commission of the act but without the knowledge referred
to in 2 (a) and (b) then he acted with colourless intention

Intention is always used in the technical sense

His will must be directed towards the commission of the prohibited act or the causing of the
prohibited result while he has the knowledge of the existence of the circumstances mentioned in
the definitional elements of the crime and the unlawfulness of the act – also called dolus

Two elements of intention

Consists of the cognitive and the conative elements

Cognitive Element – consist of X’s knowledge of the act, of the circumstances mentioned in the
definitional elements and of the unlawfulness

Conative – consist of directing his will towards a certain act or result

Forms of intention

Three forms of intention

Dolus directus – direct intention

Dolus indirectus – indirect intention

Dolus eveNtualis

Any one of these forms of intent may be present

Dolus Directus

Direct intention

Definitions are important and they will be asked in your test

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X is certain that he is committing the prohibited act or that he is causing the prohibited result

Dolus indirectus

X does not desire the result but he knows that the result will necessarily occur

X realises that in order for him to achieve his goal the prohibited result or act will of necessity
materialise

Dolus eventualis

Person acts with dolus eventualis if the commission of the unlawful act or the causing of the
unlawful result is not his main aim but he foresees the possibility that the prohibited result may
occur and he reconciles himself with the possibility.

Foresees and reconciles

X directed his will towards a certain event or result but foresees the possibility that if he achieves
his event or result another event or result may ensue.

However the foreseen possibility does not deter him and he continues with his act

If the foreseen act ensues then he can be guilty on grounds of dolus eventualis

Dolus eventualis can be present even if X hopes that the result does not occur. All that is required
is that he foresees the possibility and reconciles himself therewith

Dolus eventualis: foreseeing the result

Two requirements for dolus eventualis

X should foresee the possibility of the result and he should reconcile himself to this possibility

First requirement deals with what X conceives to be the circumstances or the results of the act

There cannot be dolus eventualis if X does not envisage those circumstances or results

Differs from dolus indirectus because the result does not necessarily flow from the act but is a
possibility

Real or reasonable possibility that result may ensue – Makgatho

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X must subjectively foresee the possibility

Dolus eventualis: reconciling oneself to the ensuing result

It does not follow from the fact that X foresaw the result as a reasonable possibility that dolus
eventualis is therefore present

If the person concludes that the result will not ensue from his act then dolus eventualis does not
exist

Reconcile with the possibility means that X decides to go ahead with his actions even though he
foresees the possibility that the prohibited result may follow.

He does not allow himself to be deterred by the prospect of the forbidden result

Dolus eventualis and conscious negligence

If x foresees the possibility of the results but decides that it will not flow from his actions then he
does not have dolus eventualis

Even if he unreasonably concludes that the result will not occur then dolus eventualis is excluded
because the test for intention is subjective

Luxuria – he should have realised that the result would follow from his actions, but in fact did not
realise it, he was then negligent, test for negligence is not subjective, but objective, this is
conscious negligence. He foresaw the possibility of the result occurring but he rejects the
possibility of the result happening.

Here there is a bona fide believe that the result will not take place

Subjective test

The test for intention is subjective

Must determine what the state of mind of a particular person was when he committed the act.

Question is what did he foresee not what should he have foreseen

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Test is subjective

Determining intention by inferential reasoning

Court may infer the intention from evidence relating to X’s conduct at the time of the commission
of his act as well as the circumstances surrounding the events

Indirect proof

Court must consider all the circumstances of the case and must consider all of X’s individual
characteristics’ which may have affected his state of mind

Court must then place itself in the position of the accused at the time of the conduct and then
attempt to ascertain what the accused state of mind was at the time of the conduct.

Intention in respect of circumstances

The intention must relate to the act, the circumstances or consequences as set out in the
definitional elements of the crime and the unlawfulness

In other words X must be aware of the particular circumstance

Mistake excludes intention

Knowledge component must relate to all the circumstances or consequences mentioned in the
definitional elements of the crime as well as the unlawfulness of the act

If X is unaware of these factors he lacks intention in other words there was a mistake.

Mistake relating to the unlawfulness of the act

Mistake need not be reasonable

Whether there really was a mistake which excludes intention is a question of fact

What must be determined is X’s true state of mind and his conception of the relevant events and
circumstances.

The question is not would the reasonable person in X’s position have made a mistake

The individuals characteristics are taken into account.

Mistake must be bona fide

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Material and immaterial mistakes

Not every wrong impression of facts qualifies as a mistake

Only a mistake relating to the act, the definitional elements and the unlawfulness may exclude
intention – mistake relating to these factors will be material.

Error in objecto

Mistake regarding the object of his act

Description of a certain type of factual situation

Error in objecto does not automatically lead to a finding of not guilty

The question of whether or not the error will be a defence depends on the definitional elements
of a crime

If you think that you are shooting an animal and you kill a person you made an error regarding
the object of your act.

A mistake regarding the persons identity does not exclude intent. If a believes that he is killing
B while in fact killing C the fact that he killed the wrong person does not exclude intent because
murder only requires the killing of a living human being.

Mistake as to motive

A mistake relating to motive is not a mistake relating to the Act, the definitional elements or the
unlawfulness.

Does not exclude intention

Knowledge of unlawfulness

Intention consists of two elements.

Knowledge and will

Knowledge can be divided into two

- Knowledge of the existence of the circumstances contained in the definitional elements of

the crime
- Knowledge of the unlawfulness of the act – must be aware of the fact that a ground of
justification does not exist and that your conduct constitutes a crime

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Ignorance or mistake of law

Intro

Unlawfulness includes knowledge of the law

Must not be mistaken regarding the principles of the law

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 CULPABILITY – NEGLIGENCE

General

Not only intentional act are punishable

Acts or results caused negligently may also be punishable

Act does not comply with the standard of care required by law – reasonable person test

What would the reasonable person have foreseen in the circumstances and what care would the
reasonable person have exercised in the circumstances

Also known as culpa

Negligence can only be present if at the time of the act the actor had criminal capacity

Comparison between intention and negligence

You must be able to distinguish between the two

Test to determine negligence is objective – court measures the conduct against an objective
standard.

Test to determine negligence

The question is would the reasonable person in the same circumstances have foreseen the
consequences of his act and would he have taken steps to prevent the consequences?

Negligence in respect of circumstance

Can be required by materially and formally defined crimes

Materially defined crimes means that the result is prohibited

Formally defined crimes means that the act is prohibited

The reasonable person concept

Reasonable person is fictional person

Personification of the objective test

Reasonable person – the ordinary, normal, average person with ordinary knowledge and
intelligence

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Reasonable foreseeability

First leg of the test

Would the reasonable person have foreseen that the result might ensue

If the answer is yes then you can proceed to the second leg of the test

Possibility must be reasonable

Determined with reference to the actual circumstances of the matter

Negligence must relate to the conduct, all the definitional elements of the crime as well as the
unlawfulness of the conduct.

Second leg – reasonable person would have taken steps to prevent the result occurring

Conduct differed from that of the reasonable person

Third leg of the test

You are negligent if your conduct does not comply with that of the reasonable person

Negligence in respect of unlawfulness

Actual awareness of unlawfulness isn’t required

Sufficient if the reasonable person would have foreseen the possibility that the circumstances
contained in the definitional elements might be present or that the prohibited results may flow
from the conduct

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 EFFECT OF INTOXICATION

What is the effect of intoxication on criminal capacity?

Involuntary intoxication

Must distinguish between voluntary and involuntary intoxication

Intoxication brought about without X’s conscious and free intervention

Can be a complete defence

Actio libera in causa

X intends to commit a crime but doesn’t have the courage and takes a drink in order to gain the
courage

He knows that he will commit the crime once his intoxicated

Intoxication does not constitute a defence

Intoxication and crimes of negligence

If he is charged with a crime requiring negligence for example negligent driving the mere fact that
he was intoxicated may be grounds for finding him negligent

Test to determine intoxication

Test to determine whether intoxication excludes intent is subjective

In light of all the circumstances, including the degree of intoxication, did the accused have the
intention to commit the crime.

Intoxication can only act to your favour if it is clear to the court that the liquor had a certain effect
on his mental abilities or his conception of the material circumstances surrounding the act

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 EFFECT OF PROVOCATION

Provocation may not serve as a complete defence but may mitigate sentence

May also serve as a manner to proof diminished responsibility

You must have acted immediately and should not have had time to cool off

Provocation will only serve as mitigation if there are reasonable grounds for the anger - an
objective standard must be used

Provocation by conduct

Conduct can also serve as provocation

Effect of provocation on culpable homicide

If you’re charged with culpable homicide then provocation will only exclude negligence if the
reasonable person would also have lost his temper and reacted in the way

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