‘South African criminal law’ is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al, a crime is “conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted.”Va n der Wait et al 1985, p. 24. Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society. ~ Wikipedia

In South Africa, as in most adversarial legal systems, the standard of evidence required to validate a criminal conviction is proof beyond a reasonable doubt. The sources of South African criminal law are to be found in the common law, in case law and in legislation.

Criminal law (which is to be distinguished from its South African civil law|civil counterpart) forms part of the public law of law of South Africa|South Africa,The state, that is, plays an active role in criminal litigation. as well as of the substantive law (as opposed to the criminal procedure in South Africa|procedural).”Criminal procedure is, from the point of view of criminal law, an important auxiliary branch of the law” (Snyman 2008, p. 3). The study of “criminal law” generally focuses on the substantive law: namely, the principles of law according to which criminal liability (guilt or innocence) is determined, whereas the law of criminal procedure, together with the law of evidence, generally focuses on the procedures used to decide criminal liability and theories of punishment.Kemp Criminal Law 4. A study of the substantive criminal law may be divided into two broad sections:

# an examination of the general principles of liability (applicable to crimes generally); and
# an examination of the definitions and particular requirements of the various individual crimes or “specific offences.”Kemp Criminal Law 4”.

A distinction must be drawn also between national and international criminal law. The term “criminal law” usually refers to internal or domestic or national criminal law, which is governed by the legal system of the country concerned. The term “international criminal law,” denoting a more recent branch of the law, is viewed by some as a branch of public international law, while others contend that it is, “at least in the material sense (and to a growing extent also in the institutional and procedural sense), a discipline in its own right.”Kemp Criminal Law 4”.

Adeline Deysel Attorneys are available 24 hours a day, 7 days a week on 082 529 6558 to assist you with your criminal law matters and bail applications.

Punishment

The criminal justice system in South Africa is aimed at law enforcement, the prosecution of offenders and the punishment of the convicted. It is that part or sub-system of the national legal system which determines the circumstances and the procedures according to which people and legal entities may be punished by the State for criminal conduct.

Punishment is the authoritative infliction by the State of suffering for a criminal offence. The “essential purpose of criminal law is to provide a mechanism for punishing the offender.”Kemp Criminal Law 13, 20. There are numerous theories of punishment, whose two main purposes are

# to justify the punishment imposed; and
# to define the type and scope of different punishments.

The various theories of punishment seek to answer the question: “Why does the criminal justice system punish individuals? In other words, what is the purpose of punishment?”Kemp Criminal Law 20.

In criminal law, a number of theories of punishment have been identified. They are normally grouped or classified under three broad headings:

# ‘retributive’ or ‘absolute’ theories of punishment, which justify punishment on the basis that it is deserved;
# ‘utilitarian’ or ‘relative’ theories of punishment, which justify punishment on the basis that it is socially beneficial; and
# ‘combination’ or ‘unitary’ theories of punishment, which fuse in various measures the other two categories.

Retributive theories

Retributive or absolute theories of punishment, “perhaps the best known with ancient roots,”Kemp Criminal Law 20. aim to restore the legal balance upset by the crime; they are also known as “just desert.”Kemp Criminal Law 20. Ancient notions of justice, including the idea of “an eye for an eye” (the ancient lex talionis), “clearly informed this theory of punishment.”Kemp Criminal Law 20.

In modern criminal law, “one should be careful not to confuse Punishment|retribution with vengeance (concept)|vengeance.”Kemp Criminal Law 21”. The focus now is not on vengeance, private or otherwise; it is, rather, “a more nuanced and enlightened attempt to restore the balance that was disturbed by the criminal conduct.”Kemp Criminal Law 21”. It has been argued, accordingly, that it would be more appropriate to refer to this approach as “restorative justice.”Kemp Criminal Law 21”. An important point or premise to keep in mind, when considering the retributive theory of punishment, is the fundamental notion of criminal law that individuals are personally responsible for their own wrongdoing. This is the idea of self-determinism or free will.Kemp Criminal Law 21.

Retributive theories generally take proportionality into account and consider the perpetrator’s record of previous wrongdoing. They do not seek to justify punishment with reference to some future benefit which it may achieve; it is incorrect, in fact, to describe retribution as a “purpose of punishment.” Retribution, according to this theory, is the essential characteristic of punishment.Snyman 2008, p. 12.

Utilitarian theories

There are three types of utilitarian or relativism|relative theories of punishment:

# prevention;
# deterrence; and
# reformation.

The first two, deterrence and prevention, are connected, in that the goal of deterrence is to prevent recidivism or repeat offending.

Preventive

According to the preventive theory of punishment, the purpose of punishment is the prevention of crime. This theory can overlap with its deterrent and reformative counterparts, since both deterrence and reformation may be seen merely as methods of preventing crime. Among the “less drastic examples of the preventive approach” are “(preventive) imprisonment, and the forfeiture of a driver’s license.”Kemp Criminal Law 21”.

On the other hand, there are other forms of punishment (such as capital punishment and life imprisonment, and the Castration#Punishment|castration of sexual offenders) which are in line with the preventive purpose, but which do not necessarily serve also the aims of reformation and deterrence.Snyman 2008, p. 15. These forms are “the most extreme manifestation” of the preventive theory: “The criminal offender is permanently incapacitated and can no longer pose a risk to society.”Kemp Criminal Law 21”. Capital punishment “can also be seen as the ultimate form of retribution.”Kemp Criminal Law 21”.

Deterrent

Of all the relative theories, the theory that punishment should serve as a deterrent “is arguably the most popular.”Kemp Criminal Law 21”. There is an important distinction to be made between

* ‘individual deterrence’, which is aimed at the deterrence of a certain individual from the commission of further crimes, by individualising the punishment; and
* ‘general deterrence’, “aimed at a wider audience,”Kemp Criminal Law 21”. which seeks to deter the entire community, or at least a significant portion, from committing the type of crime in question.

Individual deterrence may be said to be aimed primarily at the prevention of recidivism, although the rate of recidivism in South Africa is around ninety per cent,Snyman 2008, 16. which would seem to suggest that it is not meeting with success.

If the punishment meted out to the individual offender is “disproportionately harsh” in its service as a warning to the rest of society, “the punishment can no longer be described as a ‘just desert’ (in terms of the retributive theory) and, in the South African context, there might also be a constitutional objection.”Kemp Criminal Law 21”. Accordingly, “the general deterrent approach to punishment is […] less attractive (at least not as attractive as the retributive theory, which holds out the possibility of better proportionality).”Kemp Criminal Law 21”.

Reformative

The third of the utilitarian or relative theories of punishment is the reformative theory, which is encapsulated by the judgment in S v Shilubane,2008 (1) SACR 295 (T). where the court found “abundant empirical evidence”—it cited none, though—that retributive justice had “failed to stem the ever-increasing wave of crime” in South Africa.Para 5. The courts, it decided, must therefore “seriously consider” alternative sentences, like community service, as viable alternatives to direct imprisonment.Para 6. A reformatory approach, the court found, would “benefit our society immensely by excluding the possibility of warped sentences being imposed routinely on people who do not deserve them.”Para 6.

“This approach,” write Kemp et al, “is, on the face of it, quite attractive, since it purports to be sophisticated and aimed not at retribution, but at reform (which connotes positive impressions of the betterment of individuals and society).”Kemp Criminal Law 21”. There are, however, “many practical and theoretical objections.”Kemp Criminal Law 21”. They all come down, in essence, to the contention that reformation “does not actually work in practice–the criminal justice system is simply not good at ‘reforming’ people.”Kemp Criminal Law 21”. Furthermore, “there is also a theoretical/moral objection: if the focus is only on the individual offender that needs to be reformed, then there is no justice in terms of the victims or the broader society. That leaves the very real impression or perception that ‘justice was not served.'”Kemp Criminal Law 21”.

Combination theories

Because “the various theories of punishment all contain positive and negative aspects,”Kemp Criminal Law 22. an “obvious approach should therefore be a well-balanced combination of the elements that are best suitable in terms of the interests of society, the individual offender and the nature of the crime.”Kemp Criminal Law 22. In criminal law, this is known as “the combination theory of punishment.”Kemp Criminal Law 22.

The most-cited and -generally accepted of the combination theories is that laid out in S v Zinn,1969 (2) SA 537 (A). where Frans Lourens Herman Rumpff|Rumpff JA laid out a basic triad of sentencing considerations:

# the crime;
# the offender; and
# the interests of society.540G.

This judgment has been taken as “confirming the combination theory as the best approach” in South African law.Kemp Criminal Law 22.

In S v Makwanyane,1995 (3) SA 391 (CC). which eliminated capital punishment in South Africa, Chaskalson P provided a clearer combination of the other theories of punishment, laying emphasis on deterrence, prevention and retribution.Para 135. S v Rabie,1975 (4) SA 855 (A). Although recognised as a legitimate object of punishment, retribution should not, according to the court, be given undue weight, given South Africa’s human rights ethos and the role to be played by ubuntu in society; the primary object of punishment should be prevention and rehabilitation, not revenge. The court held that “punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.”862G.

The court in S v Salzwedel2000 (1) SA 786 (SCA). held that among the aggravating factors to be considered in sentencing was racial motivation in the commission of a serious offence, because racism subverted the fundamental premises of the ethos of human rights which now, after the negotiated settlement, permeated South Africa’s processes of judicial interpretation and discretion. The court decided that a substantial term of imprisonment, for a murder committed out of racism, would give expression to the community’s legitimate feelings of outrage. It would also send out a strong message that the courts will not tolerate—they will deal severely with—serious crimes perpetrated in consequence of racist and intolerant values inconsistent with the ethos of the Constitution of South Africa|Constitution.

In S v Combrink2012 (1) SACR 93 (SCA). the court held that, given the public ire with sentences which appear to favour a particular group in society, the court must exercise judicial sensitivity in cases which appear to have racial or discriminatory connotations. The public interest against discrimination is not necessarily in discrimination between black and white, but rather between people in general who perceive others, with prejudice, to be different or inferior to them. In order properly to combat hate crimes, decision makers in the criminal justice system should be attuned to the fact that the effects go far beyond the victims, serving to traumatise whole communities and damaging South African society.

Principle of legality

According to the principle of legality, the State may inflict punishment only for contraventions of a designated crime created by a law that, before the contravention, was in force, valid and applicable.Burchell 2004, p. 94.Kemp Criminal Law 17. It is a corollary of the rule of law: an idea developed, mainly during the 17th and 18th centuries, by such political philosophers as Montesquieu and Cesare Beccaria|Beccaria, “in reaction to the harshness and arbitrariness of the political systems of their day.”Kemp Criminal Law 17. The doctrine of the rule of law holds that people should be governed by and according to law (a body of established and impartial rules), rather than by “the arbitrary whims of those in power,”Kemp Criminal Law 17. and that everyone, including those in power, should be subject to the law. No-one should be “above the law.”

The principle of legality is summed up in the dictum nullum crimen sine lege, “no crime without a law.” This principle, “basic to criminal liability in our law,” as the court put it in S v Smit,2007 (2) SACR 335 (T).378G. is supplemented by that of nullum crimen sine poena, “no crime without punishment.”See R v Carto 1917 EDL 87.95–97. In R v Zinn,1946 AD 346. although the court did not make the assumption that, if an enactment is to create a crime, it should provide either expressly or by reference for a punishment, it was thought “improbable that if the lawgiver had intended that the Besluit should create a crime, he would not have taken the precaution of inserting a penalty—more particularly as this is what appears generally to have been done.”361. The court in R v Carto held that “to render any act criminal in our law, there must be some punishment affixed to the commission of the act,” and that “where no law exists affixing such punishment there is no crime in law.”95.

Another important principle is nulla poena sine lege: “no punishment without a law.” To apply the principle of legality, it is important that the definitions both of common-law and of statutory crimes be reasonably precise and settled. Penal statutes should be strictly construed; the law should be accessible.R v Carto. Finally, there is the dictum nullum crimen, nulla poena sine praevia lege poenali: “laws and punishments do not operate retrospectively.”

Legality and the Constitution

The South African Constitution entrenches the principle of legality. Its preamble states that South Africa is founded on the supremacy of the Constitution and the rule of law.s 1(c). The Bill of Rights, meanwhile, provides that “every accused person has a right to a fair trial, which includes the right

# “not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; [and]
# “to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”s 35(3).

In terms of the ius certum principle (the principle of certainty), the crime must not, as formulated, be vague or unclear. The subject must understand exactly what is expected of him. The definition of a crime should be reasonably precise and settled, so that people need not live in fear of breaking the law inadvertently. Although the Constitution does not expressly provide that vague or unclear penal provisions may be struck down, it is “quite possible and even probable,” according to Snyman,43. that the first provision above will be interpreted in such a way that vaguely defined statutory crimes may be declared null and void. This “void-for-vagueness” rule may be based either on the right to a fair trial in general or on the principle that, if a criminal norm in legislation is vague and uncertain, it cannot be stated that the act or omission in question actually constituted an offence prior to a court’s interpretation of the legislation.

It is also possible to base the operation of the ius certum provision on section 35(3)(a) of the Constitution, which provides that the right to a fair trial includes the right to be informed of the charge with sufficient detail to answer it. In S v Lavhengwa1996 (2) SACR 453 (W). it was held that the right created in section 35(3)(a) implies that the charge itself must be clear and unambiguous. This, according to the court, would only be the case if the nature of the crime were sufficiently clear and unambiguous to comply with the constitutional right to be sufficiently informed of the charge. It was held further that, to comply with the requirement of sufficient clarity, one should bear in mind

# that absolute clarity is not required, because reasonable clarity is sufficient;R v Pretoria Timber 1950 (3) SA 163 (A) 176H.S v Engeldoe’s Taxi Service 1966 (1) SA 329 (A) 339G. and
# that a court, in deciding whether a provision is clear or vague, should approach the legislation on the basis that it is dealing with reasonable people, not foolish or capricious ones.S v O’Malley 1976 (1) SA 469 (N) 474G.S v Mahlangu and Others 1986 (1) SA 135 (T) 141G-H.

It is not only statutory criminal provisions that may, on the ground of vagueness, be declared null and void in terms of the Constitution, but also provisions of the common law that are vague and uncertain. In S v Friedman1996 (1) SACR 181 (W). it was argued on behalf of the accused that the rule in regard to the crime of fraud (that the prejudice need be neither actual nor of a patrimonial nature) was unconstitutional on the ground of vagueness. Although the court rejected the argument, it is noteworthy that nowhere in its judgment did it call into question the principle that rules of common law may be declared null and void on the ground of vagueness.

Criminal liability

Probably the most important principle of criminal liability is captured in the dictum actus non facit reum nisi mens sit rea, or “an act is not unlawful unless there is a guilty mind.” To establish criminal liability, the State must prove, beyond a reasonable doubt, that the accused has committed

* voluntary conduct which is unlawful (actus reus); accompanied by
* criminal capacity; and
* fault (mens rea, in the form of intention or negligence).

Conduct

Although in theory one could begin to study the general principles of criminal liability with any one of these three elements, the usual starting point is to consider the accused’s conduct. If the State is unable to prove unlawful conduct on the part of the accused, the accused cannot be criminally liable, and the enquiries into criminal capacity and fault become redundant. Criminal capacity and fault are never determined in isolation; they must be determined in relation to the relevant accused’s particular unlawful conduct. For these reasons, a trial court will normally begin its judgment by considering whether the State has proved the actus reus, before going on to consider the other two elements of liability.

Since each crime has its own definition, the actus reus varies according to the crime concerned. There are, however, certain essential requirements which must invariably be met in order to satisfy the unlawful-conduct part of the enquiry. Burchell lists the elements of unlawful conduct as

* conduct;
* causation; and
* unlawfulness.It must consist of conduct that was defined by law as a crime at the time that the conduct took place. This is in order to satisfy the principle of legality, discussed above.

For Snyman, it is the following:

# conduct;
# compliance with the definitional elements;
# unlawfulness; and then
# capacity and fault, which go together to establish culpability.

The law violated by the conduct could be common law or statute. Where, however, the conduct with which the accused is charged does not fit the definition of a crime, or where that crime did not exist at the time the conduct occurred, the principle of legality has not been satisfied, and the accused cannot be held liable. He is entitled to object to the charge on the basis that it does not disclose an offence.When the accused raises such an objection, he is entitled to have the point decided in limine, before being required to plead.

The conduct must

* be carried out by a South African criminal law#Human act|human being;
* be South African criminal law#Voluntariness|voluntary; and
* take the form
** of a South African criminal law#Commission or omission|commission or omission;
** of a state of affairs prohibited by law; or
** of causing a consequence prohibited by law.

Human act

Criminal law is concerned with punishing the acts of human beings. The act, therefore, must be a human act; it must be committed or carried out by a human being. This is self-explanatory. The criminal justice system is not used to punish animals for their misconduct. If, however, a human uses an animal to carry out a criminal act—for example, if he incites a dog to bite someone—this does not exonerate the perpetrator: It is the human act, the incitement of the dog, which is punishable.

Voluntariness

Criminal law is concerned with punishing only such conduct as the accused has the power to prevent or avoid if he wants to. In order, therefore, to attract criminal liability, the accused’s conduct must in the first instance be voluntary. The term “voluntary,” as it is used in this part of the enquiry, has a special and restricted meaning. It has nothing to do with what the accused intended or desired or wanted to do;This is part of the fault enquiry. it is concerned merely with whether or not the accused’s actions were controlled by his conscious will, in the sense that the accused was physically able to direct them, prevent them or stop them, if he chose to do so. If the relevant act or omission is involuntary, the general rule is that the accused is not criminally liable.

The State bears the onus of proving that the accused’s conduct was voluntary. If, however, the accused alleges that he acted involuntarily, he must lay an evidential foundation for that defence. It is not sufficient for him simply to place the issue in dispute and leave it at that. Furthermore, even if the accused’s act or omission was involuntary, he may yet be held criminally liable if the involuntary conduct was made possible by some prior voluntary conduct on his part.

Involuntary actions are not regarded as conduct for the purposes of criminal liability. The same applies to involuntary omissions, which are cases in which the accused failed to act as required by law, because he lacked the physical ability to control his actions at the relevant time. The following are therefore not usually regarded as examples of voluntary conduct for the purposes of criminal law:

* actions that result from imposed physical force;An example would be where Cameron grabs Tim’s hand and uses it to slap Armand. Tim is not guilty of assault, but Cameron is.
* uncontrollable muscular movements, such as those resulting from pure muscular reflex,An example would be where Rodney happens to kick Dr Zietsman while the doctor is testing his reflexes. or from spasticity;
* acts and omissions that occur during sleep or unconsciousness;An example would be where Caroline takes her baby to sleep with her, rolls onto the baby in her sleep, and suffocates him, or where she blacks out while driving her car, loses control of the vehicle, and causes an accident. and
* acts and omissions that occur during a state of automatism.An example would be where Mohammad attacks Luke while he is sleepwalking. This last requires further discussion.

Automatism

As described in the English case of Bratty v A-G for Northern Ireland,1963 AC 386. automatism (law)|automatism is any act which is performed by the muscles without any control of the mind. Examples include a spasm, reflex or convulsion, or an act by a person who is Unconsciousness|unconscious because he is a sleep. Bratty, in casu, had strangled a passenger in his car. His defence was that he had suffered a blackout and could not remember the critical events. Lord Denning, on appeal, dismissed this defence as “the first refuge of a guilty mind.” He added, “An act is not involuntary merely because it is not remembered; amnesia does not equal automatism.”

The word “automatism” is derived from “automaton,” which refers to a mechanical device with no thought or will of its own. A person might to perform what appears to be a conscious and goal-directed action, but he might actually not be in conscious control of that action, or even aware of what he is doing. In some cases, such a person commits acts which, if committed voluntarily, would amount to crimes. Because his conduct is involuntary, however, he cannot be held criminally liable for those acts or their consequences.

Cases of genuine automatism are uncommon and may be difficult to prove. Automatism is sometimes classified according to whether or not it is

* organic;To be organic, it must have originated within the body, possibly as a consequence of physical illness or injury, such as epilepsy, concussion or brain tumor.
* toxic;To be toxic, it must have been caused by the consumption of alcohol, drugs or some other intoxicating substance. or
* psychogenic.To be psychogenic, it must have originated in the mind, due to psychological factors that may or may not result from a mental illness or defect.

Formerly the courts would draw a distinction between “sane” and “insane” automatism. Where the automatism is due to a mental illness or defect (whether psychogenic or organic), it is termed insane automatism. In such cases, the accused must raise the defence of mental illness or defect. This defence excludes criminal capacity rather than unlawful conduct. It has two significant consequences for the accused:

# He bears the burden of proving his defence on a balance of probabilities.
# If his defence succeeds, the court is obliged to enter a special “verdict,” with the result that the accused may run the risk of being detained indefinitely in a mental institution.

In S v Stellmacher, a case which illustrates the difference between sane and insane automatism, Stellmacher was an epileptic who, while in a state of automatism, shot and killed someone. Before the incident, he had been on a severe diet (nutrition)|diet for some weeks. On the day in question, he ate nothing and did hard physical labour. At about 18:00, he went to the bar (establishment)|bar of the local hotel and drank half a bottle of brandy. He had a gun with him. There, in the bar, according to his evidence, he “lapsed into a state of automatism, as a result of the strong reflection in his eyes of the setting sun through an empty bottle.” He then became involved in an altercation with someone in the bar, took out his gun, let off a few shots, and then, for no apparent reason, proceeded to shoot the deceased, who had just entered the bar to ask if he could order a drink.

At the trial, expert evidence was led that Stellmacher was suffering from “amnesia and automatism” due to hypoglycaemia and/or epilepsy, possibly triggered by his fasting and drinking. The central issue was not whether or not he should be convicted of murder—it was accepted that he was not liable—but rather whether or not he had suffered from a temporary mental disorder, necessitating a special verdict. The court held that Stellmacher’s automatism, in this case, was due to physical factors, not any physical abnormality, so a special verdict was not required. He was found not guilty and acquitted outright.

Among the more common forms and causes of sane automatism are the following:

* sleepwalking;
* epilepsy;
* hypoglycaemia;
* Syncope (medicine)|blackouts;
* amnesia; and
* intoxication.

There has in recent years been a move away from the distinction between sane and insane automatism, because of the confusion it causes, given that the defence of “insane automatism” is actually nothing more or less than the defence of mental illness.

Epilepsy

One example of automatism may be found in cases of epilepsy, the main symptom of which is repeated seizures, usually with convulsions. The exact causes of epilepsy are not fully known or understood, but it is thought to be caused by a chemical imbalance in the brain, resulting in some of the nerve cells becoming overactive and firing off random, uncontrolled signals. This results in seizures.

Movements performed during an epileptic seizure are involuntary. Generally, therefore, they cannot result in criminal liability. Because, however, the cause of epilepsy is centred in the brain, there was doubt for some time as to whether or not it should perhaps be regarded as a mental illness or defect. If so, this would mean that the defence of insanity would have to be raised, relying on the Criminal Procedure Act of 1977.s 78. It was ultimately settled, though, that epilepsy in South African law is not a mental illness or defect. A special verdict, therefore, is not required.

A case in which a defence relying on epilepsy succeeded is R v Mkize.1959 (2) SA 260 (N). Mkize was an epileptic. One day, while cutting meat with a sharp knife, he experienced an episode that the testifying expert described at trial as an “epileptic equivalent”–“an attack where the ordinary fit is replaced by a period of confusion.” During this episode, for no apparent reason, he suddenly stabbed and killed his sister, standing next to him. He was charged with her murder. His defence was that his conduct was involuntary. The court found, on a balance of probabilities, that he had indeed suffered an “epileptic equivalent.” He had been unconscious, with “neither judgment, will, purpose nor reasoning.” The stabbing was a result of “blind reflex activity.” There was no intention to kill. His actions, therefore, could not constitute unlawful conduct for the purposes of criminal liability. The verdict was “not guilty.”

Culpable prior voluntary conduct

Although involuntary acts and omissions cannot, in themselves, give rise to criminal liability, a situation that requires special consideration is when the accused is liable not on the basis of his final involuntary act or omission, but on the basis rather of some prior voluntary conduct, coupled with the required form of fault (usually negligence), where such conduct is causally connected to the later involuntary act or omission.

In R v Victor,1943 TPD 77. the appellant knew that he was prone to epileptic fits—he had been since the age of fourteen or fifteen—but nevertheless drove a motor car, against medical advice. One day, he suffered a fit while driving and collided with a pedestrian and another car. Someone was badly hurt. He was charged with and convicted of reckless or negligent driving—not because he was epileptic, but because he had chosen to drive when a reasonable person would have foreseen the likelihood of a fit and its consequences. He should not in the circumstances have driven at all. Even though his conduct was involuntary at the time of the accident, he could not use his disability to escape liability. He was convicted on the basis of his negligent prior voluntary conduct.

The driver in R v Schoonwinkel,1953 (3) SA 136 (C). also an epileptic, was charged with culpable homicide, having collided with and killed the driver of another car. The accused had suffered an epileptic fit at the time of the accident, rendering his mind a blank and leaving him with no time to take evasive action. Unlike Victor, Schoonwinkel had had only two previous and minor attacks, the last a long time before the accident. The court accepted that the nature of his epilepsy was such that he would not normally have realised or foreseen the dangers of driving. This evidence, distinguishing this case from Victor, exonerated him from criminal responsibility. His prior conduct had not been negligent.

Intoxication

Another example of automatism may be found in cases of substance intoxication|intoxication. When a person is extremely drunk, or otherwise intoxicated, this may lead to temporary loss of consciousness, and sometimes to automatic behaviour. South African law, as a general principle of criminal liability, does not distinguish between automatism as a result of intoxication and other forms of sane automatism, regardless of whether the intoxication is voluntary or involuntary. The Appellate Division reiterated in S v Johnson1969 (1) SA 201 (A). that only voluntary conduct is punishable. This includes voluntary drunkenness which does not result in a mental disease: It is no defence in respect of an offence committed during such drunkenness.

In S v Chretien1981 (1) SA 1097 (A). the leading authority on the defence of intoxication, the Appellate Division held that voluntary intoxication may constitute an absolute defence, leading to a total acquittal, where, inter alia, the accused drinks so much that he lacks criminal capacity. In particular, the court distinguished between three different stages of intoxication and their effect on criminal liability:

# If the accused was so drunk that he was performing involuntary movements with his arms and legs, he would not be criminally liable, because such movements would not be regarded as “conduct” for the purposes of criminal liability.
# If he was less drunk, but drunk enough that he had lost his powers of insight and/or self-control, he would not be liable, because he would lack criminal capacity.
# If he was even less drunk, but merely drunk enough that he failed to foresee the unlawful consequences of his actions, he would lack fault in the form of intention, and would therefore escape liability for a crime that required this form of fault—although he could still be negligent and might therefore not escape liability for a crime that required this form of fault.

The case of Chetrien explains why intoxication features as a defence under unlawful conduct, again under criminal capacity, and again under fault. For present purposes, however, it ought to be noted that it is only extreme intoxication that will lead to involuntary conduct.

The general principles that relate to voluntary intoxication have been modified, firstly by a long-standing principle of Roman-Dutch law, known as the actio libera in causa rule, and more recently by the provisions of the Criminal Law Amendment Act.Act 1 of 1988.

If a person deliberately gets drunk in order to commit a crime “that he might otherwise not have had the courage to commit,”Kemp Criminal Law 37″. the actio libera in causa rule provides that he will be guilty of that crime, even if his conduct was not voluntary at the time of its commission, because the original cause of that conduct (getting drunk) was within his conscious control at the time he did so.

Chetrien led to “a public outcry,”Kemp Criminal Law 37″. which resulted, seven years later, in the legislature’s intervening to limit the destructive consequences of the decision. Parliament enacted section 1(1) of the Criminal Law Amendment Act,Act 1 of 1988. in “a vain attempt to reflect public sentiment on intoxication.” In so doing, “the Legislature simply compounded the problems.”Burchell 2012, p. 148. Modelled on the German penal code, this provision created the special statutory offence of committing a prohibited act while in a state of criminal incapacity induced by the voluntary consumption of alcohol. In other words, it is a criminal offence in itself to commit a criminal act while one’s criminal capacity is impaired by the voluntary use of an intoxicating substance, if one knows that the substance is one which tends to have an intoxicating effect, and if one is then found not liable for the crime in question due to one’s lack of criminal capacity. This requires the prosecution to prove, beyond a reasonable doubt, that the accused is not liable for a common-law offence (although he may be subjected to the same punishment) because of the lack of capacity resulting from this self-induced intoxication, “so requiring the prosecution to engage in an unfamiliar volte face.” As Burchell explains,

If the intoxication, leading to an acquittal of the common-law offence, is only sufficient to impair intention (as on the facts of Chretien), rather than sufficient to impair capacity, then no liability can result under s 1(1), as lack of capacity resulting from intoxication has to be proved for a conviction under s 1(1). The section is in dire need of reform or replacement with a more appropriately worded section.Burchell 2012, p. 149; his emphasis.

Force

Another defence is force, which may take the form either of vis absoluta (absolute force) or vis compulsiva (relative force). In S v Goliath,1972 (3) SA 1 (A). the Appellate Division found that, on a charge of murder, compulsion can constitute a complete defence. When an acquittal may occur on this basis will depend on the particular circumstances of each case. The whole factual complex must be carefully examined and adjudicated upon with the greatest of care.

Commission or omission

Unlawful conduct most often takes the form of an act, or positive conduct, but there are occasions when an omission will be regarded as unlawful, and so will give rise to criminal liability.

Commission

In many cases, the accused’s conduct will take the form of actually committing an act that has been prohibited by law. This type of unlawful conduct “probably corresponds most closely with the popular conception of a crime.”Kemp Criminal Law 44. Most common-law crimes fall into this category. For example,

* Cameron punches Armand, thus assaulting him;
* Mo has sexual intercourse with Georgia without her consent, thus raping her; and
* Theo breaks into Steve’s house and steals his property, thus committing housebreaking and theft.

This form of unlawful conduct is “generally easy to identify and understand.”Kemp Criminal Law 44.

Omission

Unlawful conduct may also take the form of an omission, a failure to act. The position here is less straightforward. The general rule is that a person will not be criminally liable for failing to protect or rescue another person, because there is no general duty on any person to prevent harm from coming to another, even if it could be done easily, and even if it would be the morally correct thing to do. This rule is based on the recognition

* that the imposition of such an obligation must inevitably represent a serious invasion of personal liberty and freedom of action;
* that the law does not, as a general rule, seek to penalise a person simply for doing nothing; and
* that it is not the proper role of the law to enforce pure morality.

There are, however, certain situations where such a duty does exist, because the legal convictions of the community demand that, in these situations, the failure to protect or rescue should be regarded as unlawful.

General test for liability for omissions

An omission is punishable only if there is a legal duty upon someone to perform a certain type of active conduct. Minister of Police v Ewels,1975 (3) SA 590 (A). although a delictual case, expresses the general rule, with its broad and flexible test for liability arising out of omissions: An omission is to be regarded as unlawful conduct when the circumstances of the case are of such a nature

* not only that the omission incites moral indignation; but
* also that the legal convictions of the community demand that it be regarded as unlawful, and that the damage suffered be made good by the person who neglected to perform a positive act.596-7.

To make a determination as to whether or not there is unlawfulness, the question is not whether there was the usual “negligence” of the bonus paterfamilias; the question is whether, regard being had to all the facts, there was a duty in law to act reasonably. In Ewels, a citizen was assaulted in a police station by an off-duty officer in the presence of other officers. It was held by the court, on the facts of this case, that a policeman on duty, if he witnesses an assault, has a duty to come to the assistance of the person being assaulted. The failure of the police to do so made the Minister of Police liable for damages.

The flexible test in Ewels was adopted into criminal law in S v Gaba.In S v A, however, the Appellate Division pointed out that, just because a particular obligation may give rise to delictual liability, it does not follow necessarily that the same omission will give rise also to criminal liability. Different policy considerations apply.

Crystallised categories of liability for omissions

In deference to the principle of legality, authors and commentators on criminal law usually rely on those established categories of liability which have emerged from the case law over the years. These categories of liability may be regarded as the crystallised legal convictions of the community referred to in Ewels. A legal duty to act may exist

* where a statute or the common law places such a duty on the accused (for example, to fill in a tax return);In such a case, “it is easy enough to understand” that the failure to perform that act, as and when required by law, will be regarded as unlawful conduct (Kemp Criminal Law 44). Such omissions are known as “pure” omissions.
* where prior positive conduct by the accused creates a potentially dangerous situation;Where, for example, one has lit a fire in a bush, one ought to extinguish it.
* where the accused has control of a potentially dangerous thing or animal;
* where a special or protective relationship exists between the parties, whether through natural relationship, contract or some other conduct whereby the accused deliberately, or even tacitly, assumes such a duty;An example of this situation would be the case of a lifesaving|lifesaver and a swimmer, or of a parent and a child. and
* where a person occupies a certain public or quasi-public office which imposes on him, within the course and scope of his employment, a duty to act (like the office of policeman).

Prior positive conduct

In S v Russell,1967 (3) SA 739 (N). Russell was an employee of the Department of Water Affairs. Together with his supervisor and co-workers, he was unloading pipes onto a lorry at a railway station. The workers were using an overhead crane (machine)|crane, parked under the railway’s electric power lines. Because of the danger, the power had been switched off. While Russell’s supervisor and co-workers were away having lunch, the power was turned on again. A railway employee told Russell to warn the crane operator about this—that is, about the danger of operating a crane under a live electric wire—when the workers returned. Russell accepted this instruction without pointing out that he was not the supervisor, and failed to pass on the warning when loading resumed. This omission, constituting negligence, led to one death, as the crane touched the power line and the operator was electrocuted. Russell was convicted of culpable homicide and appealed to the High Court (then the Supreme Court), which held that the way in which Russell had apparently accepted the warning had created a potentially dangerous situation. That being the case, he had attracted a legal duty to pass on the warning. By failing culpably in this duty, he was clearly negligent. His conviction of culpable homicide was confirmed.

Control of a dangerous thing or animal

In S v Fernandez,1966 (2) SA 259 (A). the court held that the appellant had been negligent in mending a cage (enclosure)|cage from which a vicious baboon had subsequently escaped, which subsequently bit a child, who subsequently died. The appellant must have foreseen the likelihood of an attack in the event of the baboon’s escaping; he was, the court held, rightly convicted of culpable homicide for failing take steps to prevent this: that is to say, for failing to keep the cage door in good repair.

Protective relationship

In Minister of Police v Skosana,1977 (1) SA 31 (A). there was a negligent delay in furnishing medical aid to the deceased, whose widow established, on a balance of probabilities, that he would not otherwise have died. She was granted damages. The duty to protect detainees, the court held, extends further than merely preventing them from being assaulted. There is also, for example, the duty to obtain medical treatment for them when necessary.

Public or quasi-public office

The police in Minister of Law & Order v Kadir1995 (1) SA 303 (A). failed to collect information which would have enabled the seriously injured respondent to pursue a civil claim against the driver of the other vehicle. The Minister raised an exception, contending that there was no legal duty on the police to collect such information. The court a quo dismissed this argument, finding that the community would consider otherwise. On appeal, however, the SCA held that society understood police functions to relate principally to criminal matters, maintaining law and order, and preventing and detecting and investigating crime. The police are not designed to assist civil litigants. Society would baulk at the idea of holding policemen personally liable for damages arising out of a relatively insignificant dereliction. The respondent had not proved the existence of a legal duty.

As for the State’s duty to protect persons from violent crime, there are a number of suggestive delictual cases.

The Constitutional Court, in Carmichele v Minister of Safety & Security,2001 (4) SA 938 (CC). found that the State could be held delictually liable for damages arising out of the unlawful omissions of its servants. In casu, the conduct of the police and a prosecutor had resulted in the release of a person, charged with rape, on his own recognisance. This person had subsequently assaulted the complainant. Snyman, for one, has noted the court’s emphasis on section 39(2) of the Constitution, which provides that “every court […] must promote the spirit, purport and objects of the Bill of Rights.” This, he argues, “may perhaps one day open the way for holding an individual police officer liable for a crime such as culpable homicide flowing from her negligent omission to protect a person from the real possibility of harm.”Snyman 61n, recommending a consultation of Burchell 196–205.

In Minister of Safety & Security v Van Duivenboden,2002 (6) SA 431 (SCA). the Supreme Court of Appeal held that, while private citizens may be entitled to remain passive when the constitutional rights of other citizens are threatened, the State has a positive constitutional duty, imposed by section 7 of the Constitution, to act in protection of the rights in the Bill of Rights. The existence of this duty necessarily implies accountability. Where the State, represented by persons who perform its functions, acts in conflict with section 7, the norm of accountability must of necessity assume an important role in determining whether or not a legal duty ought to be recognised in any particular case.Para 21, read with para 20. This norm need not always translate constitutional duties into private-law duties, enforceable by an action for damages; there are other remedies available for holding the State to account. Where, however, the State’s failure to fulfil its constitutional duties occurs in circumstances that offer no effective remedy other than an action for damages, the norm of accountability will ordinarily demand the recognition of a legal duty, unless there are other considerations affecting the public interest which outweigh that norm.Para 21.

The police in Minister of Safety & Security v Hamilton2004 (2) SA 216 (SCA). were negligent in their consideration and approval of an application for a firearm licence, accepting the correctness of information supplied by the applicant. They had a legal duty to “exercise reasonable care in considering, investigating, recommending and ultimately granting” such applications. Their failure properly to exercise this duty had resulted in the issuing of a firearm licence to an unfit person, who subsequently shot the respondent. The State was held to be delictually liable for the resultant damages.

In Van Eeden v Minister of Safety and Security,2003 (1) SA 389 (SCA). the appellant was assaulted, raped and robbed by a known dangerous criminal who had escaped from police custody. The court held that the State was obliged to protect individuals by taking active steps to prevent violations of the constitutional right to freedom and security of the person: inter alia, by protecting everyone from violent crime. It was also obliged under international law to protect women specifically from violent crime.{{citation needed|dateDecember 2013}} In light of these imperatives, the court could no longer support the requirement of a special relationship between the plaintiff and the defendant for the imposition of a legal duty: The police have a duty to protect the public in general from known dangerous criminals in their custody.

Additional requirements

Once it has been established that the accused had a legal duty to prevent the harm, he will be liable for his failure to do so only if he had the necessary means and opportunity to prevent it from occurring, and if the harm that did occur is directly attributable to his unlawful omission.

Causation

Crimes of consequence should be distinguished from crimes of circumstance:

* A crime of ‘circumstance’ is one in which it is the situation which is criminal (like the mere possession of an offensive weapon), rather than any result (like murder) which flows from the situation.
* A crime of ‘consequence’, or a “materially-defined crime,” is one in which the conduct itself is not criminal, but in which the result of that conduct is. It is not unlawful merely to throw a stone; if it is thrown at and hits a person, it is. The precise nature of the crime, furthermore, is contingent on the result: If the stone causes serious injury, the crime will be grievous bodily harm; if it kills a person, the crime could be murder or culpable homicide.Murder and homicide, indeed, “are perhaps the most notable examples” of consequence crimes.

Causation is not a general element of liability.The general elements of liability, South African criminal law#Criminal liability|again, are conduct, unlawfulness, capacity and fault. Causation describes the way in which the definitional elements of some crimes are met.According to Snyman, it forms part of the definitional elements themselves.

In all consequence crimes, the State bears the onus of proving, beyond a reasonable doubt, that there is a sufficient link between the accused’s initial conduct and the prohibited consequence. If there is no causal link, or if the link is too tenuous, the accused will not be guilty of the crime, although he may perhaps be guilty of an attempt to commit that crime, or of some other offence.

There are two forms of causation which have to be proven. They form part of a two-stage causation enquiry:

# The State must first establish whether or not there is a causal link or nexus between the accused’s initial conduct and the consequence in question. If there is no causal link, there can be no liability; that is the end of the matter. If there is a causal link, the State proceeds to the next step.
# The next step is to consider whether the link thus established is sufficiently close and strong. The closeness and strength of the link must be such that, as a matter of law and policy, the accused ought to be held liable for his role in producing that consequence.

The two-stage enquiry may be broken down into two elements: a factual element (the first stage) and a legal or policy element (the second).

Factual causation

The first stage of the enquiry is aimed at determining whether the accused’s conduct was the actual or “scientific” cause of the consequence, in that the consequence would not have occurred, either at all or when it did, had not it been for the accused’s conduct. To decide this, the court will apply the condictio sine qua non test, also known as the “but-for” theory. A condictio sine qua non is a condition without which something—that is to say, the prohibited situation—would not have materialised: literally, “the condition without which … not.”Kemp Criminal Law 61.

Commission

In the case of a positive act, the but-for test holds that, if not for that act, the unlawful consequence would not have ensued. The question to be asked is this: Can the act be notionally or hypothetically eliminated, without the disappearance of the consequence (at the time of the consequence), from the sequence of events which led to the consequence?

* If not, the accused’s conduct was a factual cause of the consequence.
* If, however, there is a reasonable possibility that the consequence would have occurred in any event, the accused’s conduct did not factually cause the consequence, and the accused will not be liable.

Omission

In the case of an omission, the conditio sine qua non theory considers whether, but for the omission, the consequence would not have ensued. In other words, we notionally or hypothetically insert the requited positive act into the sequence of events, in place of the accused’s inaction, and then consider whether or not the consequence in question would have occurred when it did:

* If the consequence would not have occurred, the accused’s omission is proved to have been the factual cause of that consequence.
* If, however, there is a reasonable possibility that the consequence would have occurred in any event, the accused cannot be held to have caused that consequence, and will not be held liable.

In S v Van As,1967 (4) SA 594 (A), Van As was a police officer. One night, he and a number of other policemen arrested a man for drunken driving and took him into custody. While the police were locking the suspect in a patrol van, the five young children in his company disappeared. The detainee begged the police to look for them. The police made a cursory search, but failed to find them. Three of the children managed to make their way home, but the following morning two of them were found dead from exposure. The police, including Van As, were charged with and convicted of culpable homicide. On appeal, however, the Appellate Division reversed the trial court’s decision. It held that, although it would have been reasonable to continue the search and make further enquiries, it had not been proved, beyond reasonable doubt, that the children would have been found by a proper search had one been undertaken. It had also not been so proven that the failure to institute such a search was responsible for the children’s deaths. The State, then, was unable to show that the deaths had been factually caused by the omission of the police.

In Minister of Police v Skosana (noted earlier), there was a negligent delay in furnishing medical treatment to a prisoner who had been injured in a car accident and was then arrested for drunken driving. He ultimately died of his wounds. His widow brought a claim for damages arising out of his wrongful death, and was able to establish, on a balance of probabilities, that he would not have died “but for” that delay. There was adequate proof, in other words, that the deceased would probably have survived had he received medical treatment sooner. Having thus proved that the delay was a conditio sine qua non of her husband’s demise, the widow was found to be entitled to damages.

Legal causation

The steps to take or questions to ask, in seeking to establish causation, are the following:

* Having regard to all the facts and circumstances, was X’s conduct the factual cause of Y’s death?
* If so, should the accused be held legally responsible for the consequence, either alone or in combination with other causal factors?

On the one hand, the law does not want individuals to escape liability for the natural and probable consequences of their conduct. On the other hand, the law does not seek to hold individuals liable for consequences that are too remote from their original conduct; otherwise the net of criminal liability would be spread too wide.

To determine whether or not it would be reasonable and fair to regard Andrew’s act as the cause of Susy’s death, for example, the court may invoke the aid of one or more specific theories of legal causation:

* the “proximate-cause” criterion, also known as direct-consequences or individualisation theory;
* the theory of adequate causation; and
* the novus actus interveniens criterion.

Proximate cause

In terms of the proximate-cause criterion, the act of the accused may be seen to be the legal cause of a particular result only if the result arose directly from the accused’s conduct. The conduct will not be regarded as such if some new act or event intervened, between the accused’s conduct and the consequence in question, to alter the natural and probable course of events in such a way that the accused’s conduct, even though it may have been the original (and thus the factual) cause of the consequence, can no longer be regarded as its direct or proximate—that is, its closest—cause. If this happens, we say that the “chain” of causation has been broken. The accused, accordingly, is absolved from liability.

S v Daniels provides what Synman describes as “the clearest” rejection of the theory of proximate cause in South African law.85. Two judges of appeal expressly refused to accept that only an act which is a proximate cause of death may qualify as its cause.341C.331A-B.332–333.

In S v Tembani (1998)|S v Tembani,1999 (1) SACR 192 (W). however, it seemed to the Witwatersrand Local Division to be “of overriding importance that the original wound inflicted by the accused was an operating and substantial cause of the death of the deceased.”

The idea of a proximate cause was expressed negatively in R v Mubila,1956 (1) SA 31 (SR). with the statement that there must be no novus actus interveniens between X’s conduct and Y’s death,32–33. as well as positively, in the contention that Y’s death must follow directly from X’s conduct.33B.

Snyman, endorsing Daniels, describes proximate cause as “too vague and arbitrary to serve as a satisfactory criterion” for legal causation.85.

Adequate cause

In terms of the theory of adequate causation, an act is the 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. This theory, as noted above, was invoked in Daniels.332H.

There are a number of knowledge-based considerations:

* All of those factual circumstances which are ascertainable by a sensible person should be taken into consideration. The thin skull of the deceased, if he had one, would be an example.
* The extra or particular knowledge of the accused is not omitted. If the accused has knowledge in addition to that which an ordinary sensible person would possess, that knowledge is to be taken into account as well.
* The totality of human knowledge, including that which only a specialist possesses, must also be considered.
* Knowledge may even be considered which comes to light only after the occurrence or event.

In R v Loubser,1953 (2) PH H190 (W). Rumpff J declared that, in the eyes of the law, an act is the cause of a situation if, according to human experience, the situation will flow from the act.

Novus actus interveniens

A novus actus interveniens (or nova causa interveniens) is a new intervening act, or a new intervening cause: that is to say, an abnormal interposition or event which breaks the chain of causation. A number of factors are important, according to Burchell,218–221. in determining what kind of intervening act or event breaks the causal chain. It is important to bear in mind that this stage of the enquiry involves strong policy considerations. It is not an enquiry merely into whether or not there was some kind of additional or external factor that contributed towards the consequence in question; the enquiry is into whether that factor is of such a nature and magnitude that it should exonerate the accused from liability for the actual consequences of his conduct.

If an act or event is unlikely, in light of human experience, to follow the accused’s act, it is more probable that it will be found to be a novus actus interveniens.

If the act of the accused is of a kind which is unlikely to cause death, the intervening act or event is considerably more likely to be regarded as a novus actus interveniens.

The accused need not be the sole cause of the consequence.

Voluntary conduct—conduct which is free and informed—is more likely to be regarded as a novus actus interveniens than involuntary conduct.

An abnormal event, otherwise amounting to a novus actus interveniens, will not be so counted if it was foreseen by the accused (or, in cases of negligence, if it ought reasonably to have been foreseen), or if it was planned by him.

The victim’s pre-existing physical susceptibilities are, by logical definition, never an intervening cause. Where, therefore, the victim was suffering from a physical condition, such as a weak heart, haemophilia, a cerebral aneurism or an earlier injury, rendering him particularly susceptible to harm, and thereby contributing to his death, the maxim in South African law is that “you take your victim as you find him,” with all his weaknesses and susceptibilities. This rule, commonly known as the “thin skull” or “eggshell skull” rule, comes from a number of early English cases in which the victims were found to have had abnormally thin skulls, which rendered them especially vulnerable to harm in cases of relatively minor injury.

In determining whether or not medical intervention ranks as a novus actus interveniens, it is important to determine whether or not the intervention was negligent or in some other way improper. Where the deceased died as a result of (possibly risky) medical treatment, necessitated by the injury inflicted by the accused, and which was administered in good faith, it is not a novus actus interveniens. The same applies if the accused died as a result of complications, such as an infection, which arose directly from such an injury.

It is also clear that a doctor’s inability to save the life of a victim who is already moribund or dying is not a novus actus interveniens. Whether the withdrawal of a life-support system by a medical practitioner may be regarded as a novus actus arose in S v Williams, where it was held that such medical conduct did not break the causal sequence set in motion by Williams, who had shot the deceased, thereby inflicting those initial wounds on the deceased which had necessitated her being put on the respirator in the first place. Within 48 hours, she had been pronounced brain-dead, and the respirator duly disconnected. When Williams was tried for her murder, he claimed that he had not been the cause of her death; it was, rather, the conduct of the doctors in disconnecting the respirator. On being convicted, he appealed to the Appellate Division, where the court distinguished between “ending a fruitless attempt to save life” and a positive act causing death, and held that, since the injury inflicted by Williams had been a mortal or life-threatening one, and since the deceased was being kept alive only by artificial means, the doctors did not cause her death when they disconnec