GPCL SUMMARY NOTES WP- LEARNING UNIT 6

LEARNING UNIT 6

THEME 1- THE CONCEPT OF CRIMINAL CAPACITY

Explain the term “culpability” which describes the mens rea part of criminal liability

Culpability, often referred to as mens rea (Latin for "guilty mind"), is a fundamental requirement for
criminal liability. It means that a person must be personally blameworthy for their unlawful conduct. A
crime is not simply the commission of an unlawful act; the accused (X) must have acted with a
blameworthy state of mind.

Key Aspects of Culpability:

1. Blameworthiness – A person is only culpable if they can be fairly blamed for their actions. This
excludes young children or mentally ill individuals who lack insight or self-control.

2. Intention and Negligence – Culpability generally exists in two forms: intention (dolus), where the
person knowingly and willingly commits an act, and negligence (culpa), where they fail to act as a
reasonable person would.

3. Mistake and Accident – If X mistakenly believes they are acting lawfully (e.g., taking someone
else’s coat believing it to be their own), they lack culpability. Similarly, accidents do not attract
criminal liability.

4. Freedom of Will – Criminal law assumes that people have free will and the ability to choose their
actions. If a person acts under overwhelming duress, they may not be culpable.

5. Legal vs. Moral Culpability – Criminal culpability is based on legal norms rather than personal
beliefs. Even if X believes their actions are morally justified, they can still be legally culpable.

6. Contemporaneity Principle – The mental state (mens rea) and the unlawful act must coincide for
criminal liability to arise. A later realization of guilt does not create culpability.
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7. Rejection of the “Taint Doctrine” – In South African law, a person cannot be held criminally liable
for all unintended consequences of an unlawful act unless there is culpability for those specific
consequences.

Conclusion:

Culpability ensures that individuals are not punished for actions they did not intend or foresee. It is a
necessary element of criminal liability that focuses on the individual's ability to understand and control
their actions within the framework of legal norms.

Define the concept of criminal capacity as a prerequisite for criminal liability

Criminal capacity is a fundamental component of culpability in criminal law. It refers to an individual's

mental ability to distinguish between right and wrong and to act in accordance with this understanding.
Without criminal capacity, a person cannot be held criminally liable for their actions.

Key Aspects of Criminal Capacity:

1. Essential for Blameworthiness – Criminal capacity is a prerequisite for holding a person

personally accountable for unlawful conduct. Without it, a person cannot be blamed for their
actions.

2. Mental Ability Requirement – To have criminal capacity, a person must:

o Understand the difference between lawful and unlawful conduct.

o Be able to act in accordance with this understanding.

3. Exclusions – Individuals who lack criminal capacity include:

o Young children (e.g., a six-year-old cannot be criminally liable).

o Mentally ill persons who cannot control their actions or understand their wrongfulness.

4. Not a Separate Requirement – Criminal capacity is not an independent element of liability but an
integral part of culpability. Without it, intention or negligence alone is insufficient to establish
blameworthiness.

5. Legal Implications – A person may act intentionally but still lack criminal capacity (e.g., a mentally
ill person who commits a crime with awareness but lacks self-control).

Conclusion:

Criminal capacity ensures that only individuals who can appreciate their actions and act accordingly are
held criminally liable. It is a necessary element within the broader concept of culpability and prevents
punishment of those who, due to age or mental illness, cannot be fairly blamed for their conduct.
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Explain the two- legged psychological test for criminal capacity

The two-legged psychological test is used in criminal law to determine whether an accused ( X) has
criminal capacity. Criminal capacity is a prerequisite for holding someone criminally liable, as it assesses
whether the accused was mentally capable of understanding their actions and acting accordingly.

The Two Components of the Psychological Test for Criminal Capacity:

To establish criminal capacity, the test examines whether X had:

1. Cognitive Ability (Understanding Right from Wrong) – This refers to X’s ability to distinguish
between lawful and unlawful conduct. If X cannot understand the difference between right and
wrong, they lack criminal capacity.

2. Conative Ability (Ability to Act in Accordance with That Understanding) – Even if X knows their
actions are wrong, they must also be capable of controlling their behavior according to that
knowledge. If X is unable to do so (e.g., due to a mental illness or extreme emotional distress),
they lack criminal capacity.

Application of the Test:

• If X fails either part of this test, they cannot be held criminally liable.

• This test ensures that individuals who lack criminal capacity (e.g., children or those suffering
from mental illness) are not unfairly punished.

Conclusion:

The two-legged psychological test safeguards against convicting individuals who lack the mental ability to
understand or control their actions. By assessing both cognitive and conative abilities, it ensures that only
those who can fairly be blamed for their actions are held criminally responsible.

THEME 2- THE DEFENCE OF YOUTH

Discuss the age categories set out in the Child Justice Act and the implications of criminal capacity for
juvenile offenders under each category

The Child Justice Act 75 of 2008 categorizes children into three age groups to determine their criminal
capacity. The Act replaced previous common-law rules and provides a structured approach to handling
juvenile offenders based on their age and mental development.

Age Categories and Their Legal Implications:

1. Children Under 12 Years (Previously Under 10 Years)

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o These children are irrebuttably presumed to lack criminal capacity.

o This means they can never be prosecuted or convicted of a crime, regardless of the
circumstances.

o Instead of facing criminal prosecution, they are referred to child protection services for
intervention.

2. Children Aged 12 to 14 Years

o These children are rebuttably presumed to lack criminal capacity.

o This means that the State must prove beyond reasonable doubt that the child:

▪ Could distinguish between right and wrong (cognitive ability).

▪ Was able to act in accordance with that understanding (conative ability).

o Factors such as education, family background, maturity, and the seriousness of the
offense are considered.

o A probation officer’s assessment report and expert evaluations may be required.

o If criminal capacity is not proven, the child is not held criminally liable.

3. Children Aged 14 Years and Older

o They are presumed to have full criminal capacity, just like adults.

o However, the presumption remains rebuttable, meaning the child can argue that they
lacked criminal capacity due to their personal circumstances (e.g., peer pressure,
mental impairment).

o The court may still consider diversion or alternative sentencing based on the child's
background.

Implications of Criminal Capacity for Juvenile Offenders:

• The law recognizes that younger children lack full cognitive and emotional maturity to
understand or control their actions.

• Children under 12 years are protected from criminal prosecution and instead receive
rehabilitative care.

• For those between 12 and 14 years, criminal liability depends on their actual capacity at the time
of the offense.
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• Older children (14+) are generally treated like adults but with considerations for their age and
circumstances.

• Courts prioritize rehabilitation over punishment, using diversion programs where possible.

Conclusion:

The Child Justice Act balances legal accountability with child development principles, ensuring that
younger children are protected from unfair prosecution, while older children are held accountable in a
manner appropriate to their age and maturity.

Apply the statutory provisions to a given scenario to determine if a child is considered culpae capax
and/or calpae incapax with regard to criminal liability

To determine whether a child is culpae capax (capable of criminal liability) or culpae incapax (incapable of
criminal liability), the statutory provisions in the Child Justice Act 75 of 2008 must be applied. The Act
categorizes children into different age groups, each with specific legal implications for criminal capacity.

Scenario 1: A 9-Year-Old Child Takes a Chocolate Bar from a Store Without Paying

Legal Determination:

• Under Section 7 of the Child Justice Act, a child under 12 years (previously under 10 years) is
irrebuttably presumed to lack criminal capacity.

• This means that the child cannot be prosecuted or convicted for theft, regardless of intent.

• Instead, the matter would be handled through child protection services or the Children’s Court.

Conclusion: The child is culpae incapax and cannot be held criminally liable.

Scenario 2: An 11-Year-Old Child Is Caught Shoplifting Expensive Electronics

Legal Determination:

• The child is between 12 and 14 years, meaning they are rebuttably presumed to lack criminal
capacity.

• The State must prove beyond reasonable doubt that:

1. The child understood that stealing was wrong (cognitive ability).

2. The child could act in accordance with that understanding (conative ability).

• Factors like the child's education level, environment, and maturity will be considered.

• If the prosecution fails to prove criminal capacity, the child cannot be held liable.
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• If criminal capacity is proven, the child may be convicted, but rehabilitation-focused measures
(such as diversion programs) are preferred.

Conclusion: The child’s liability depends on whether the State can prove criminal capacity. If proven, the
child is culpae capax; if not, they remain culpae incapax.

Scenario 3: A 15-Year-Old Child Commits Assault During a School Fight

Legal Determination:

• At 14 years and older, the child is presumed to have full criminal capacity, like an adult.

• However, this presumption is still rebuttable, meaning the defense can argue that the child
lacked self-control or maturity to act lawfully.

• The court may consider mitigating factors like peer pressure, emotional distress, or lack of
proper parental guidance.

• The child can be prosecuted and convicted if all elements of the crime are proven.

Conclusion: The child is culpae capax and can be held criminally liable, but sentencing may consider
rehabilitation rather than punishment.

General Implications of Criminal Capacity for Juvenile Offenders

• Under 12 years: Culpae incapax – Cannot be prosecuted.

• 12–14 years: Presumed culpae incapax, but the State can rebut this presumption.

• 14+ years: Presumed culpae capax – Can be prosecuted, but rehabilitation remains a priority.

Final Conclusion:

Each case involving a child must be assessed based on age, maturity, and criminal intent. While younger
children are protected from prosecution, older children may be held accountable, but courts favour
rehabilitation over punitive measures.

THEME 3- THE DEFENCE OF MENTAL ILLNESS

Define the defence of mental illness as it is contained in section 78(1) of the Criminal Procedure Act

The defence of mental illness (previously referred to as insanity) is governed by Section 78(1) of the
Criminal Procedure Act 51 of 1977. This section provides a legal framework for determining whether an
accused person (X) should be exempt from criminal liability due to mental illness or intellectual disability.

Key Elements of Section 78(1):

 GPCL SUMMARY NOTES WP- LEARNING UNIT 6

A person is not criminally responsible if, at the time of committing an offence, they suffered from a
mental illness or intellectual disability that made them:

1. Incapable of appreciating the wrongfulness of their act (cognitive ability); OR

2. Incapable of acting in accordance with that appreciation (conative ability).

Breakdown of the Defence:

1. The Biological (Pathological) Requirement

• The accused must have suffered from a mental illness or intellectual disability at the time of the
offence.

• This is a medical determination based on expert psychiatric evidence.

• Mental illness can be temporary or permanent, and it does not have to originate in the mind (e.g.,
conditions like arteriosclerosis may qualify).

• The law distinguishes mental illness (which may develop later in life and can be temporary) from
intellectual disability (which is usually present from birth and permanent).

2. The Psychological (Functional) Requirement

To lack criminal capacity, the mental illness or intellectual disability must have impaired one of two
functions:

• Cognitive Function: The ability to distinguish right from wrong.

• Conative Function: The ability to control actions in line with an understanding of right and wrong.

Even if an accused understood their actions were wrong, they may still escape liability if they could not
control their behavior due to their mental condition.

Key Considerations in Applying the Defence:

• Psychiatric evaluation is required to confirm the presence of a mental illness or intellectual

disability.

• Duration of illness is irrelevant—what matters is whether it was present at the time of the
offence.

• Mental illness vs. Automatism: Automatism (such as sleepwalking or a concussion) can also
negate criminal liability, but it is distinct from the defence of mental illness.

• Onus of proof: The accused (X) must prove, on a balance of probabilities, that they lacked
criminal capacity due to mental illness.
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Legal Consequences If the Defence Succeeds:

If the court finds that the accused was mentally ill at the time of the offence, they are found not guilty.
The court may then:

1. Order detention in a psychiatric hospital;

2. Order temporary detention in a correctional health facility if no psychiatric bed is available;

3. Admit the accused to a designated health establishment as an involuntary mental health care
user;

4. Release the accused with or without conditions; or

5. Refer the accused to a children’s court (if applicable).

Conclusion:

The mental illness defence under Section 78(1) provides a safeguard for individuals who, due to mental
illness or intellectual disability, could not understand the wrongfulness of their actions or control their
behaviour. It ensures that such individuals receive appropriate treatment rather than punishment, aligning
with principles of fairness and justice in criminal law.

Discuss who bears the onus of proof when this defence of mental illness is raised

In criminal law, every person is presumed to be mentally sound and therefore criminally responsible for
their actions. However, if the accused (X) raises the defence of mental illness as per Section 78 of the
Criminal Procedure Act 51 of 1977, the burden of proving this defence falls on the party that raises it.

Who Bears the Burden of Proof?

The onus of proof depends on who raises the issue of mental illness:

1. If the accused (X) raises the defence → The burden of proof rests on the accused. X must
prove, on a balance of probabilities, that they suffered from a mental illness or intellectual
disability at the time of the offence, which rendered them incapable of:

o Appreciating the wrongfulness of their act (cognitive function) OR

o Acting in accordance with that appreciation (conative function).

2. If the State (prosecution) raises the issue → The burden shifts to the State to prove, on a
balance of probabilities, that X was mentally ill at the time of the offence and therefore not
criminally responsible. This scenario is rare, as the State typically seeks to establish criminal
liability rather than argue for X’s mental incapacity.
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Legal Presumptions and Implications

• Section 78(1A) of the Criminal Procedure Act states that every person is presumed not to suffer
from a mental illness or intellectual disability until proven otherwise.

• Section 78(1B) further clarifies that the burden of proof for criminal responsibility is on the party
that raises the issue—usually the accused.

Thus, X must present psychiatric evidence to support their claim. If successful, the court will find X not
guilty by reason of mental illness, leading to detention in a psychiatric institution or other appropriate
measures.

Possible Constitutional Challenge

The requirement that X must prove their own mental illness has been debated for its potential conflict
with the presumption of innocence under Section 35(3)(h) of the Constitution, which states that an
accused has the right to be presumed innocent until proven guilty. However, courts have generally
upheld this rule, reasoning that mental illness is a special defence, not an element of the crime, and that
the accused is best placed to present evidence regarding their own mental state.

Conclusion

When the defence of mental illness is raised:

• The accused (X) must prove their incapacity on a balance of probabilities if they raise the
defence.

• If the State raises the issue, it must prove on a balance of probabilities that X was mentally ill at
the time of the offence.

• The presumption of mental soundness remains unless successfully challenged.

This principle ensures that criminal liability is assigned fairly, protecting both the rights of the accused
and the interests of justice.

List the directions a court may issue in terms of section 78(6) of the CPA following successful reliance
on this defence of mental illness by an accused

When an accused successfully relies on the defence of mental illness under Section 78(1) of the
Criminal Procedure Act (CPA) 51 of 1977, the court must issue a verdict of "not guilty by reason of
mental illness or intellectual disability."

However, the court does not simply discharge the accused but must issue one of several directions
under Section 78(6), depending on the circumstances of the case.
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Possible Court Orders After a Successful Defence of Mental Illness

The court has discretion to order any of the following:

1. Detention in a psychiatric hospital

o The court may order that the accused be admitted to and detained in a psychiatric
hospital or designated health establishment as a state patient under the Mental Health
Care Act 17 of 2002.

o This is usually ordered if the accused is deemed to pose a serious danger to

themselves or others.

2. Temporary detention in a correctional health facility (prison hospital)

o If no bed is immediately available in a psychiatric hospital, the accused may be

temporarily detained in a correctional health facility within a prison until a bed becomes
available.

o This is only done if the accused is considered a serious risk to public safety.

o Once a bed is available, the accused will be transferred to a psychiatric hospital.

3. Detention as an involuntary mental health care user

o The court may direct that the accused be detained in a designated health establishment
and treated as an involuntary mental health care user under the Mental Health Care Act.

o This means the accused will receive medical treatment and psychiatric care but will not
be classified as a state patient.

4. Conditional release

o The court may release the accused subject to certain conditions.

o These conditions might include:

▪ Regular psychiatric treatment

▪ Mandatory reporting to authorities

▪ Supervision by a guardian or family member

o If the accused fails to comply, they may be re-detained.

5. Unconditional release

o The court may release the accused without any conditions.

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o This is typically done if the evidence shows that the accused has fully recovered and is
no longer a danger to society or themselves.

6. Referral to a children’s court (if the accused is a minor)

o If the accused is a child, the court may refer them to a children’s court under the Child
Justice Act 75 of 2008.

o The child may be placed:

▪ Under the care of a parent, guardian, or other responsible adult, or

▪ In temporary safe care under the Children’s Act 38 of 2005.

Factors Considered by the Court

When deciding which direction to issue, the court considers:

- The nature and seriousness of the offence
- The accused’s current mental state
- Whether the accused poses a danger to the public
- Expert medical psychiatric assessments
- The availability of medical facilities for treatment
- The accused’s age and personal circumstances

Conclusion

After a successful defence of mental illness, the accused is not simply set free. Instead, the court
carefully assesses the risk and chooses an appropriate order to protect both the accused and society.

THEME 4- THE DEFENCE OF INTOXICATION

Briefly discuss the historical development of intoxication as a common law defence

1. Introduction

Intoxication has long been recognized as a factor that can impair an individual's cognitive and motor
functions, leading to diminished self-control, impulsiveness, and an inability to appreciate the
wrongfulness of one's actions. However, legal systems have struggled with the extent to which
intoxication should serve as a defence to criminal liability.

In South African law, intoxication can affect various elements of a crime, including:

• The act itself (whether the accused performed a voluntary act).

• Criminal capacity (whether the accused could appreciate the wrongfulness of their act).
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• Culpability (whether the accused had the required intent for the crime).

The common law approach to intoxication as a defence has evolved over time, influenced by policy
considerations (protecting society from intoxicated offenders) and principle-based legal doctrines
(ensuring that only blameworthy individuals are held criminally liable).

2. Stages in the Historical Development of the Intoxication Defence

The approach to intoxication in South African law has undergone four distinct phases:

(i) Early Common Law: Intoxication Not a Defence

• In early Roman-Dutch law, voluntary intoxication was never a defence to criminal liability.

• It was regarded as a form of moral weakness, and a drunken person was held accountable for
their actions just as a sober person would be.

• Courts, however, allowed intoxication to mitigate punishment in some cases.

(ii) The “Specific Intent” Approach (Pre-1981)

• Throughout the 20th century, courts attempted to find a middle ground between principle and
policy by adopting the specific intent theory.

• This approach distinguished between:

o Crimes requiring specific intent (e.g., murder, assault with intent to do grievous bodily
harm).

o Crimes requiring only general intent (e.g., common assault, theft).

• If an accused was too intoxicated to form specific intent, they could be convicted of a lesser
offence (e.g., murder reduced to culpable homicide).

(iii) The Chretien Case (1981): The Shift to Principle-Based Liability

• The landmark case of S v Chretien (1981) radically changed the legal approach to intoxication.

• The Appellate Division rejected the specific intent theory and ruled that:

o If a person is so intoxicated that they lack criminal capacity, they should be completely
acquitted.

o Intoxication could exclude even general intent, not just specific intent.

o The court warned, however, that intoxication should not be too easily accepted as a
defence, to avoid undermining justice.
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(iv) Legislative Response: Criminal Law Amendment Act (1988)

• The Chretien decision caused concern that too many intoxicated offenders could escape
liability.

• In response, the Criminal Law Amendment Act 1 of 1988 introduced the offence of "statutory
intoxication", making it a crime to voluntarily become intoxicated and commit an unlawful act
while in that state.

• This law represents a compromise between the principle-based approach of Chretien and the
policy concerns about crime control.

3. Conclusion

The historical development of intoxication as a defence in South African law reflects an ongoing struggle
between:

- Protecting the public from intoxicated offenders (policy-based approach).

- Ensuring only blameworthy individuals are punished (principle-based approach).

Although early law completely rejected intoxication as a defence, the Chretien case introduced a more
principled approach, allowing intoxication to exclude criminal liability in extreme cases. However, the
1988 legislation sought to limit this defence by introducing statutory intoxication, ensuring that
intoxicated individuals can still face criminal consequences.

Discuss the Appellate Division’s decision in S v Chretien, noting what is meant when intoxication is said
to be a “multiple defence”

1. Introduction

The consumption of alcohol or drugs can significantly impair an individual’s ability to control their actions,
assess the consequences of their conduct, and resist criminal urges. This raises critical legal questions
about whether intoxication should serve as a defence to criminal liability.

The Appellate Division’s decision in S v Chretien (1981) fundamentally altered the approach to
intoxication in South African criminal law. The case rejected the specific intent theory and recognized
that intoxication could serve as a complete defence in certain cases. This landmark ruling led to the
classification of intoxication as a “multiple defence”, meaning it can affect different elements of criminal
liability in various ways.

2. The Judgment in S v Chretien (1981)

(a) Background and Facts of the Case

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• In S v Chretien, the accused attended a social gathering where he consumed a substantial

amount of alcohol.

• Later that night, he drove his car into a crowd of people, causing the death of one person and
injuring five others.

• He was charged with murder for the fatality and attempted murder for the injured victims.

• His defence argued that due to his intoxicated state, he lacked the necessary intent to commit
these crimes.

(b) Key Findings of the Appellate Division

The Appellate Division, led by Chief Justice Rumpff, made several groundbreaking rulings:

1. Rejection of the "Specific Intent Theory"

o Previously, courts distinguished between specific intent crimes (e.g., murder, assault
with intent) and general intent crimes (e.g., common assault).

o Under this theory, intoxication could only negate specific intent, leading to a conviction
for a lesser offence instead of a complete acquittal.

o Chretien rejected this approach, holding that intoxication could exclude even general
intent, leading to an acquittal if intent was absent.

2. Recognition of Intoxication as a Complete Defence in Certain Cases

o If an accused was so intoxicated that they lacked criminal capacity, they could not be
convicted.

o If intoxication excluded intent, then they could not be guilty of an offence requiring
intent.

3. Warnings Against Abuse of the Defence

o The court cautioned that intoxication should not be easily accepted as a defence.

o Courts should carefully evaluate whether the accused truly lacked capacity or intent
before acquitting them.

(c) Application of These Principles in Chretien

• Murder charge: The court reduced it to culpable homicide because the accused lacked intent to
kill.
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• Attempted murder charges: The accused was completely acquitted since he lacked the
intention to cause harm.

• Common assault charge: The court found that intoxication negated even this lesser intent,
leading to a full acquittal.

3. Intoxication as a “Multiple Defence”

The decision in Chretien established intoxication as a "multiple defence", meaning that intoxication can
impact various elements of criminal liability in different ways:

(i) Intoxication as a Defence Against Voluntary Conduct (Actus Reus)

• If intoxication is so extreme that the accused cannot control their bodily movements, they are in
a state of automatism.

• In such cases, they did not act voluntarily, and therefore no crime has been committed.

(ii) Intoxication as a Defence Against Criminal Capacity

• If the intoxication is so severe that the accused lacks the ability to distinguish right from wrong
or control their actions, they lack criminal capacity.

• This results in a complete defence, leading to acquittal.

(iii) Intoxication as a Defence Against Intention (Mens Rea)

• If the accused was so intoxicated that they did not form intent, they cannot be convicted of an
intent-based offence.

• For example, murder may be reduced to culpable homicide, which only requires negligence.

(iv) Intoxication as a Factor in Sentencing

• Even if the accused is convicted, intoxication may be considered a mitigating factor in

sentencing.

• However, in some cases (such as actio libera in causa), it may lead to a harsher sentence.

4. Legal and Policy Implications of Chretien

(a) Policy Concerns and the 1988 Legislative Response

• The Chretien ruling sparked concerns that intoxicated individuals might too easily escape
conviction.
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• In response, the legislature enacted the Criminal Law Amendment Act 1 of 1988, which created
the offence of “statutory intoxication”.

• This law makes it an offence for a person to voluntarily become intoxicated and then commit an
act that would otherwise be a crime.

• The purpose of this legislation was to strike a balance between legal principle and public policy.

(b) Criticism of the Chretien Decision

• Critics argue that Chretien overemphasized legal principles at the expense of public safety.

• However, others defend the ruling, stating that it aligns with fundamental principles of justice,
ensuring that only blameworthy individuals are convicted.

5. Conclusion

The decision in S v Chretien (1981) marked a turning point in South African criminal law, fundamentally
shifting the approach to intoxication as a defence. By rejecting the specific intent theory, the ruling
recognized that intoxication could exclude liability completely under certain conditions.

Intoxication is now understood as a “multiple defence” because it can:

- Negate voluntary conduct (actus reus).
- Exclude criminal capacity, leading to acquittal.
- Negate intent, reducing serious crimes to lesser offences.
- Serve as a mitigating or aggravating factor in sentencing.

While Chretien established a principle-based approach, concerns about abuse of the intoxication
defence led to legislative intervention in 1988, aiming to strike a balance between legal fairness and
public safety.

Discuss the statutory offence of “statutory intoxication” contained in section 1 of the Criminal Law
Amendment Act that was promulgated in reaction to the S v Chretien decision

1. Introduction

It is well established that alcohol consumption can impair a person’s ability to control their movements,
assess consequences, and resist criminal urges. This can lead to impulsive actions, diminished self-
criticism, and an inability to appreciate the wrongfulness of one’s conduct. The role of intoxication in
criminal liability has long been debated, particularly in relation to its effect on the act, criminal capacity,
and culpability (intention and negligence).

The 1981 Appellate Division decision in S v Chretien caused a fundamental shift in how South African law
approached intoxication. The court ruled that intoxication could be a complete defence in some cases,
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which sparked concern that criminals could escape liability too easily. In response, the Criminal Law
Amendment Act 1 of 1988 introduced the offence of statutory intoxication, which aimed to close this
perceived gap by holding intoxicated offenders accountable in specific circumstances.

2. Background: The S v Chretien Decision and Its Consequences

Before S v Chretien, courts followed the specific intent theory, which meant that intoxication could
negate intent in crimes like murder but not in crimes requiring only basic intent, such as common assault.
This approach allowed for partial defences, reducing liability but not eliminating it entirely.

However, Chretien rejected this theory, holding that intoxication could negate even basic intent and lead
to a complete acquittal in certain cases. This decision had three key consequences:

1. Recognition of Intoxication as a Complete Defence

o If a person was so intoxicated that they lacked criminal capacity, they could be fully
acquitted.

o If intoxication excluded intent, they could not be convicted of intent-based crimes like
murder, theft, or assault.

2. Public and Legal Concern

o Critics feared that the ruling would allow intoxicated criminals to evade liability too easily.

o There was concern that violent and reckless offenders would escape conviction.

3. Legislative Response: The Criminal Law Amendment Act 1 of 1988

o To prevent overuse of the intoxication defence, the legislature enacted Section 1 of the
Act.

o This created the offence of statutory intoxication, ensuring that intoxicated individuals
who would otherwise escape liability could still be convicted under a separate charge.

3. Section 1 of the Criminal Law Amendment Act 1 of 1988

(a) Wording and Interpretation

Section 1 states:

(1) Any person who consumes or uses any substance which impairs his or her faculties to appreciate the
wrongfulness of his or her acts or to act in accordance with that appreciation, while knowing that such
substance has that effect, and who while such faculties are thus impaired commits any act prohibited by
law under any penalty, but is not criminally liable because his or her faculties were impaired as aforesaid,
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shall be guilty of an offence and shall be liable on conviction to the penalty which may be imposed in
respect of the commission of that act.

(2) If in any prosecution for any offence it is found that the accused is not criminally liable for the
offence charged on account of the fact that his faculties referred to in subsection (1) were impaired by
the consumption or use of any substance, such accused may be found guilty of a contravention of
subsection (1), if the evidence proves the commission of such contravention.

This provision effectively ensures that an intoxicated person who avoids liability under Chretien can still
be convicted of a separate offence.

4. Key Elements of the Statutory Offence

For a conviction under Section 1, the prosecution must prove the following:

(a) Voluntary Consumption of an Intoxicating Substance

• The accused must have voluntarily consumed alcohol or drugs, knowing that these substances
impair judgment and self-control.

• If intoxication was involuntary (e.g., drink was spiked), the offence does not apply.

(b) Impairment of Mental Faculties

• The substance must have impaired the accused’s ability to:

o Appreciate the wrongfulness of their actions, or

o Act in accordance with that appreciation.

• This mirrors the test for criminal capacity in general criminal law.

(c) Commission of a Prohibited Act While Intoxicated

• The accused must have committed an act that would be a criminal offence if done with criminal
intent.

• However, they cannot be convicted of the primary crime due to intoxication negating their
capacity or intent.

• Instead, they are convicted of the statutory offence under Section 1.

(d) Lack of Criminal Liability for the Primary Offence

• The accused must escape liability for the primary crime (e.g., murder, assault, theft) due to
intoxication.
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• If they are convicted of the primary offence, they cannot be convicted of statutory intoxication
as a secondary charge.

5. Practical Implications and Criticism

(a) Effectiveness in Addressing the Chretien Gap

• The law ensures that a person who becomes dangerously intoxicated and commits an offence
cannot escape punishment entirely.

• It allows for accountability while respecting the principle that criminal liability requires intention or
negligence.

(b) Criticism of the Statutory Offence

1. Potential Overreach

o The provision does not distinguish between violent and non-violent crimes.

o Some critics argue that it should apply only to violent offences, as society is mainly
concerned with drunk violence, not theft or fraud committed under intoxication.

2. Burden of Proof on the State

o The state must prove beyond reasonable doubt that the accused lacked capacity due
to intoxication.

o This is challenging because courts are generally reluctant to accept claims of total
incapacity due to intoxication.

3. Possibility of Avoiding Conviction

o If the accused was intoxicated but still had some criminal capacity, they might avoid
both the primary charge and the statutory charge.

o This happens if they lacked intent but were not so impaired that they lacked capacity.

6. Conclusion

The statutory offence of intoxication under Section 1 of the Criminal Law Amendment Act was
introduced to counteract the effects of the Chretien decision and prevent intoxicated offenders from
escaping liability too easily. It ensures that someone who avoids conviction for a crime due to
intoxication can still be held accountable under a separate offence.
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While the law addresses a legitimate concern, it has faced criticism for its broad wording and difficulty in
application. Nonetheless, it reflects a compromise between principle and policy, ensuring that intoxication
is not an automatic excuse for criminal conduct while still respecting fundamental criminal law principles.

Apply the present law concerning voluntary intoxication and criminal liability to a given scenario

1. Introduction

The consumption of alcohol or drugs can impair a person’s ability to control their actions, assess
consequences, and resist criminal urges. This impairment may lead to criminal behaviour, raising the
question of how intoxication affects criminal liability.

South African law distinguishes between voluntary and involuntary intoxication. The Appellate Division
decision in S v Chretien (1981) marked a shift toward a principle-based approach, allowing for
intoxication to serve as a complete defence in extreme cases where it negated the required criminal
elements (i.e., voluntary act, criminal capacity, or intention). However, the Criminal Law Amendment Act 1
of 1988 introduced the offence of statutory intoxication to prevent intoxicated individuals from escaping
liability too easily.

The present law concerning voluntary intoxication will now be applied to the following hypothetical
scenario.

2. Scenario

X attends a social gathering and consumes a large quantity of alcohol. After several hours, X becomes
heavily intoxicated and engages in the following conduct:

1. Incident 1: Bar Fight

o X misinterprets a comment made by Y and, feeling provoked, punches Y in the face,

causing a broken nose.

2. Incident 2: Property Damage

o X then stumbles outside, sees a parked car, and mistakenly believes it belongs to a
friend who had wronged him earlier.

o He picks up a brick and smashes the car’s windshield.

3. Incident 3: Driving Under the Influence

o X then gets into his own car and drives home while heavily intoxicated.

o On the way, X swerves off the road and collides with a pedestrian, who sustains severe
injuries.
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X is subsequently charged with:

• Assault with intent to do grievous bodily harm (GBH) (Incident 1)

• Malicious injury to property (Incident 2)

• Culpable homicide or negligent driving (Incident 3)

3. Legal Analysis of X’s Liability

(a) Incident 1: Assault with Intent to Do GBH

• Application of Chretien:

o If X was so intoxicated that he lacked criminal capacity, he cannot be convicted of

assault.

o If X retained criminal capacity but lacked intent due to intoxication, he cannot be

convicted of assault with intent to do GBH but could be convicted of a lesser offence,
such as common assault.

o If he had both criminal capacity and intent, intoxication will not excuse him, though it
may serve as a mitigating factor in sentencing.

• Potential Outcome:

o If X was extremely intoxicated and lacked capacity, he could be acquitted of the assault
charge but convicted of statutory intoxication under Section 1 of the Criminal Law
Amendment Act.

o If he was moderately intoxicated but still had some intent, he could be convicted of
common assault instead of assault GBH.

(b) Incident 2: Malicious Injury to Property

• Application of Chretien:

o If X was so intoxicated that he did not act voluntarily, he cannot be convicted of

malicious injury to property.

o If X mistakenly believed the car belonged to a friend (i.e., a factual mistake due to
intoxication), this may negate intent, meaning he cannot be convicted of malicious injury
to property.

o However, intoxication does not excuse negligence, meaning X may be convicted of a

lesser form of property damage.
 GPCL SUMMARY NOTES WP- LEARNING UNIT 6

• Potential Outcome:

o If X was incapable of acting voluntarily, he might be acquitted of malicious injury to

property but could still be convicted of statutory intoxication.

o If his mistaken belief was genuine, he might escape conviction for malicious injury to
property entirely.

o If X had some intent, he may still be convicted of malicious injury to property, with
intoxication considered for sentencing.

(c) Incident 3: Culpable Homicide / Negligent Driving

• Negligence and Intoxication:

o Unlike crimes requiring intention, intoxication is not a defence to crimes of negligence.

o The test for negligence is objective: What would a reasonable person have done?

o A reasonable person would not drive under the influence, making X liable for culpable
homicide (if the pedestrian dies) or negligent driving (if the pedestrian survives).

• Potential Outcome:

o X is guilty of culpable homicide or negligent driving because intoxication does not

excuse negligence.

o The fact that X was drunk confirms rather than negates his negligence.

o The court may impose a harsher sentence, as voluntary intoxication leading to reckless
behaviour is an aggravating factor.

4. The Role of the Statutory Offence (Section 1 of the Criminal Law Amendment Act 1 of 1988)

If X escapes liability for the assault or malicious injury to property charges due to intoxication negating
criminal capacity or intent, he could still be convicted under Section 1 of the Criminal Law Amendment
Act for:

✔ Voluntarily consuming alcohol while knowing it impairs his faculties, and

✔ Committing acts that would be crimes but for his intoxication negating intent or capacity.

However, for culpable homicide/negligent driving, intoxication does not excuse negligence, so the
statutory offence would not apply.

5. Summary of X’s Potential Liability

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Incident Key Legal Question Potential Outcome

Did intoxication exclude If yes, acquittal and conviction for statutory

Assault GBH
criminal capacity or intent? intoxication. If no, conviction for common assault.

Malicious Injury Did X act voluntarily and with If yes, conviction for malicious injury to property. If
to Property intent? not, acquittal or statutory intoxication conviction.

Culpable Did intoxication negate No, conviction for culpable homicide or negligent
Homicide negligence? driving.

6. Conclusion

In this scenario, X’s intoxication affects his liability differently depending on the type of crime:

• For intent-based crimes (assault, property damage), intoxication could serve as a complete
defence if it negated criminal capacity or intent. However, X could then be convicted of
statutory intoxication.

• For negligence-based crimes (culpable homicide, negligent driving), intoxication does not excuse
liability and may even aggravate punishment.

Thus, voluntary intoxication is not a universal defence. While it may lead to acquittal in cases requiring
intent, it does not excuse negligence, and statutory intoxication laws prevent complete immunity from
punishment.

Discuss the impact of the Supreme Court of Appeal’s decision in S v Eadie on the continued existence
of this defence in our criminal law

1. Introduction

The defence of non-pathological criminal incapacity has played a significant role in South African criminal
law, allowing accused persons to argue that extreme emotional stress, provocation, or other non-
disease-related mental states prevented them from controlling their actions in accordance with their
understanding of right and wrong. Unlike pathological criminal incapacity, which results from a disease of
the mind (such as schizophrenia), non-pathological incapacity is rooted in temporary emotional
disturbance.

Historically, South African law did not allow anger, provocation, or intoxication to serve as full defences
but only as mitigating factors in sentencing. However, over time, courts began to accept non-pathological
incapacity as a complete defence, particularly in cases of extreme provocation or emotional stress.
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The Supreme Court of Appeal’s landmark decision in S v Eadie (2002) significantly curtailed this
defence, aligning it more closely with the doctrine of sane automatism. This case effectively blurred the
distinction between non-pathological incapacity and involuntary conduct (automatism), leading to
uncertainty about whether the defence still exists.

This discussion examines the impact of the Eadie decision, analyzing its reasoning, criticisms, and the
practical consequences for South African criminal law.

2. The Facts and Decision in S v Eadie

In S v Eadie (2002 1 SACR 663 (SCA)), the accused was involved in a road rage incident. After an
altercation with the deceased, Eadie retrieved a hockey stick from his car and viciously assaulted the
deceased, killing him.

At trial, Eadie argued that he lacked criminal capacity due to extreme emotional stress and provocation,
claiming that his self-control collapsed and that he could not act in accordance with his understanding of
right and wrong.

The Supreme Court of Appeal rejected this defence and upheld Eadie’s conviction for murder, with the
court reasoning that:

• The defence of non-pathological incapacity is not distinct from the defence of sane automatism.

• If an accused claims they lost self-control due to provocation, they are essentially claiming that
they acted involuntarily (automatism).

• Since automatism is rarely accepted as a defence, the same strict evidentiary burden should
apply to non-pathological incapacity.

• Courts must be highly skeptical of claims that an accused “lost control,” as this could allow
violent criminals to escape justice too easily.

Thus, the judgment drastically reduced the scope of the defence, making it extremely difficult for an
accused to argue non-pathological incapacity successfully.

3. The Legal Impact of the Eadie Judgment

(a) Blurring the Distinction Between Non-Pathological Incapacity and Automatism

Before Eadie, the law treated automatism and non-pathological incapacity as separate defences:

• Sane automatism applies where an accused acts involuntarily due to a dissociative episode,
concussion, or extreme stress.
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• Non-pathological incapacity applies where the accused retains voluntary control of their actions
but is so emotionally overwhelmed that they cannot act in accordance with their knowledge of
right and wrong.

Eadie collapsed these two defences into one, meaning that if an accused claimed that emotional stress
caused them to “lose control,” they had to prove that they acted involuntarily—a much stricter standard.

(b) Raising the Evidentiary Burden on the Accused

Eadie set a high bar for proving loss of criminal capacity, stating that courts must:

• Test an accused’s claim against objective factors (such as prior and subsequent conduct).

• Approach such defences with skepticism, as they could be used as an easy excuse for violent
crime.

• Require strong medical or psychiatric evidence rather than relying solely on the accused’s
testimony.

This made it much harder for an accused to use emotional stress or provocation as a defence,
effectively abolishing the defence in most cases.

(c) Curtailing the Role of Provocation in Criminal Law

Before Eadie, provocation could negate intention (reducing a murder charge to culpable homicide) or
negate capacity (leading to an acquittal).

After Eadie:

• Provocation alone is no longer enough to exclude criminal capacity.

• The accused must prove they acted involuntarily, which is extremely rare.

• Courts have become less willing to reduce murder charges based on provocation.

4. Criticism of the Eadie Decision

(a) Logical and Doctrinal Errors

Eadie incorrectly equates conative incapacity (loss of self-control) with automatism (loss of voluntary
action). This ignores the fundamental difference between:

• Being unable to act in accordance with right and wrong (non-pathological incapacity).

• Acting involuntarily, like a reflex (automatism).

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By conflating these concepts, the judgment undermines established legal principles and causes
confusion in criminal law.

(b) Failure to Recognize Extreme Cases

The judgment fails to acknowledge real-world situations where people may genuinely lose self-control
due to emotional stress, such as:

• Victims of domestic abuse who kill their abusers after years of suffering.

• People experiencing extreme emotional distress from trauma.

These cases do not fit within automatism, yet Eadie eliminates their legal defence.

(c) Overemphasis on Policy over Principle

Eadie prioritizes crime control over individual justice. The court was concerned that non-pathological
incapacity was being used too often, but instead of clarifying how the defence should be applied, it
effectively abolished it.

This contradicts fundamental principles of culpability and fairness, as criminal law should only punish
those who are morally blameworthy.

5. Practical Consequences of the Eadie Judgment

(a) Limited Use of the Defence in Courts

Since Eadie, courts rarely accept non-pathological incapacity. Even in extreme cases of provocation or
stress, accused persons are almost always convicted.

(b) Increased Convictions for Murder

Before Eadie, an accused who killed in a moment of extreme rage could be convicted of culpable
homicide instead of murder. Now, courts resist reducing charges, making it more likely for an accused to
be convicted of murder.

(c) Lack of Legal Protection for Battered Women and Trauma Victims

One of the most troubling consequences is that battered women who kill their abusers have lost a
crucial defence. They often cannot claim self-defence because the threat was not immediate, and after
Eadie, they cannot claim non-pathological incapacity either.

This means that many victims of abuse face life imprisonment, despite acting under extreme provocation.

6. Conclusion: The Fate of Non-Pathological Incapacity Post-Eadie

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The Eadie judgment has all but abolished the defence of non-pathological incapacity in cases of
provocation and emotional stress. By equating loss of self-control with automatism, the court raised the
evidentiary burden to a nearly impossible standard.

This has resulted in:

✔ Fewer successful defences based on emotional stress or provocation.
✔ More murder convictions, even in cases where the accused acted in extreme distress.
✔ A lack of legal protection for victims of abuse and trauma.

The Eadie decision remains highly controversial, and while it addressed concerns about the misuse of
the defence, it failed to balance crime control with fundamental principles of justice. As a result, the
defence of non-pathological incapacity has been effectively abolished in South African criminal law.