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CRIMINAL LAW PRESCRIBED CASES

PUNISHMENT THEORIES
1. S V TABETHE; DPP
CONDUCT
2. MINISTER

VAN

POLISIE

TABETHE 2011
V

EWELS 1975

CAUSATION
3. MINISTER OF POLICE V SKOSANA 1977
4. S V DANILS EN N ANDER 1983 (A)
5. S V MOKGETHI EN ANDERE 1990
6. S V TEMBANI 2007 (SCA)
UNLAWFULNESS
7. S V ENGELBRECHT 2005
8. EX PARTE DIE MINISTER VAN JUSTISIE: IN
1967 (A)
9. S V GOLIATH 1972 (A)
10.
S V MOSTERT 2006
11.
S V W EN N ANDER
CRIMINAL
12.
13.
FAULT:
14.
15.
16.
17.
18.

RE

CAPACITY
S V CHRETIEN 1981
S V EADIE 2002

INTENTION
S V GOOSEN 1989
S V DE BLOM
S V NGUBANE
S V JOSHUA 2003 (SCA)
S V NAIDOO 1993

FAULT: NEGLIGENCE
19.
S V VAN DER MESCHT 1962
20.
S V VAN AS 1976
PARTICIPATION IN CRIME: COMMON PURPOSE
21.
S V SAFATSA AND OTHERS 1988 (A)
22.
S V LUNGILE AND ANOTHER 1999
23.
S V MZWEMPI 2011
PARTICIPATION

IN CRIME : ACCOMPLICE

VAN WYK

24.

WILLIAMS

EN N

ANDER 1980

INCOMPLETE CRIMES
25.
R V SCHOOMBIE 1945
26.
R V HLATWAYO 1933
27.
R V DAVIES 1956 (A)

PUNISHMENT

THEORIES: RESTORATIVE JUSTICE

DDP V TABETHE 2011 (2) SACR 567 (SCA)

Appellant: Director of Public Prosecutions


Respondent: Tabethe

Facts:
Tabethe raped his life companions fifteen year old daughter
Daughter had forgiven him, and required that he remain out of
prison to support her and her family
Court a quo found this case to be a good opportunity for
restorative justice
DDP appealed the case on the grounds that the seriousness of
the crime was undermined and the minimum sentence for
statutory rape, 10 years imprisonment, was forgone
Legal question:
Could restorative justice be fair and just when used in serious
cases of rape such as this one?
Ratio Decidendi:
Tabethe abused his position of power and trust in the
household and has grossly violated the basic human rights of
the child
Child was suffering mentally and emotionally, so much so that
her school work was affected
The minimum sentence of 10 years imprisonment for rape, as
found in the Criminal Law Amendment Act 105 of 1997 should
be upheld
The seriousness of the crime requires the punishment to be
fitting to satisfy the interests of the community
Judge in the court a quo focused too much on what the victim
wanted
Restorative justice does not have a place in more serious
crimes such as rape and murder
Judgment:

The appeal is upheld and Tabethes previous punishments are


set aside and replaced with 10 years imprisonment.

CONDUCT: LEGAL DUTY TO ACT

MINISTER VAN POLISIE V EWELS 1975


Appellant: Minister of Police
Respondent: Ewels (victim)
Legal facts
Ewels was assaulted by off-duty police officer at station in
front of other officers at the station (some superiors) that
did nothing to prevent the assault
Minister to be held liable as policemen have a legal duty to
protect citizens
Legal question
Is there a legal duty on police officers to act positively to
prevent harm?
Ratio

POD: no liability for omissions, even if it is easy to prevent


harm
But are cases for exceptions: where there is a legal duty to
act positively arising from a protective relationship (this
case = first time courts recognised a legal duty to protect!)
Development: moral duty legal duty depends on
convictions of the community
3 reasons for legal duty:
1. Protective relationship i.e. policeman and citizens
2. Arise from office i.e. policeman - officers were present
and able to stop the assault
3. Legalisation: S 5 of Police Act the duty of the police
is to protect the community and prevent crimes from
being committed

Decision
Appeal dismissed
Therefore, there is a positive legal duty on policemen
Minister liable for damages

CAUSATION: FACTUAL CAUSATION

MINISTER OF POLICE V SKOSANA 1977


Legal facts
Skosana caused a motor vehicle accident while he was
intoxicated
The passengers in his vehicle were taken to hospital and
Skosana taken to jail and placed in a holding cell
He complained of chest pains but the police could not find
evidence that he was hurt so left him in the holding cell
In the morning Skosana was still complaining of stomach ache
The police eventually called a doctor (2hrs after opened cell),
doctor said he has internal injuries and that he needed to go
to hospital
There was more delays in transporting him to hospital
During the operation Skosana died
Legal question
Did Davel and Mahela (police officers) act negligently towards
the deceased?
Would, on a balance of probabilities, Skosana have lived but
for the unreasonable conduct (negligent conduct) of Davel and
Mahela?
Ratio
Factual causation: Conditio sine qua non test: but for the
policemens negligence, would Timothy have died?This
depends on the severity of the wounds and whether or not
Timothys going in for the operation earlier would have
increased his chance of survival
The court found that there was also a special relationship
between prisoners and the police in that the police have a
responsibility towards prisoners to attend to their medical
needs as they are not free agents to seek and obtain own
medical attention
Legal causation: The delay was the abnormal event (novus
actus intervenis) as that is not in the normal course of their
job descriptions and therefore made the delay the cause of
the death.
Adequate cause test: in the course of normal human events,
would Timothy have died without the delay? Depends on the
severity of the internal bleeding, but we can assume with
timely medical assistance his chances of surviving were
higher.

Proximate cause test: what is the main cause of Timothys


death? The peritonitis caused from infection from not being
treated fast enough.

Judgement
Appeal was dismissed
Majority of the judges found that earlier medical treatment
could have saved his life
Significant connection between negligent conduct
(slow/delayed) and death of Skosana
Constables failed to act reasonably
Minority judgement held that Skosana had sustained serious
injuries so medical treatment would not have helped
Not sufficient to create a link, he would have died
regardless

C AUSATION:

LEGAL CAUSATION

S V MOKGETHI EN ANDERE 1990


Legal facts
Robbery in bank and teller (Moloto) shot paraplegic
Given medical advice: move around in wheelchair otherwise
will develop pressure sores
He failed to move (evidence of depression) and developed
pressure sores then sores became sceptic, doctors unable to
help him and he died 6 months after the initial shooting
Legal question
Could the robber be held liable for the death of Moloto or did
he die due to his own negligence?
Ratio decidendi
Court a quo:
Robbers held liable for murder
Appeal
Was there sufficient connection between Molotos death and
the shooting?
Factual causation
But for the shooting at the bank, would Moloto have died?
Court: no he would not have been in a wheel chair and
would not have developed pressure sores
Legal causation: took into account more than one test
Individualisation test: the gunshot wound was no longer
potentially fatal, therefore the decisive cause of his death
were the pressure sores
Adequate cause test: would somebody normally die due to a
gunshot wound to the back? Not really, depending on the
case
Novus actus interveniens: Abnormal behavior? Moloto did not
move himself to avoid the pressure sores unreasonable to
not move therefore abnormal
NO legal causation
Decisions
There is not a close enough link before the factual and legal
cause and therefore the respondents were found guilty of
attempted murder, not murder itself.

C AUSATION:

LEGAL CAUSATION

S V TEMBANI 2007 (1) SACR 355 (SCA)


Facts:
The victim was shot twice by the appellant (her boyfriend) and
was taken to the hospital
There she received negligent care and has a result contracted
septicaemia and died shortly after
The appellant received 18 years imprisonment on a charge of
murder, but claims that the hospital and its negligent care is
the liable party.
In the trial case, the medical treatment was not found to be so
overwhelming that it ruptured the link between the shooting
and her death.
Doctors were slow to treat her, but the overall cause of her
death was the gunshot wound
Legal question:
Can the negligence of the hospital staff be held liable for the
cause of Thandis death over the initially inflicted gunshot
wound?
Ratio Decidendi:
The accused had the intention of grievously harming the
victim
The hospital cannot be seen as liable as the negligence was
not out of the ordinary
The victims come as they are, meaning the accused chose
this victim and whether she went to a hospital of top quality
care or a negligent one, his shot is still the deciding factor
Conditio sine qua non test: but for the negligence at the
hospital, would the victim still have died? Most likely as she
had severe injuries from the bullets
Judgment:
Appeal is dismissed, the negligence of the hospital is not
found to be grossly negligent and therefore cannot be seen as
breaking the causal link between the shooting and the death,
also the negligence at the hospital does not make the
appellant any less guilty for his deliberate infliction of the
wounds.

CAUSATION : LEGAL CAUSATION

S V DANILS EN N ANDER 1983 (3) SA 275 (A)


Ignore part of the judgement dealing with S 115 of Criminal
Procedure Act
Legal facts
Two brothers A Danils and S Danils were joined by a 3rd man
in a taxi from Grabouw to Botrivier
Taxi driver = Jacobs
At Swartrivier the taxi was told to stop by A.
A. Danils and Jacobs got out and fought.
AD produced a gun, Jacobs began to run and AD shot him in
the back twice
Jacobs fell but was still alive would die if he did not receive
medical treatment within 30 minutes unlikely in the
circumstances
A while later a 3rd shot was fired and Jacobs was shot in the
head and killed
Post mortem: cause of Ys death was the bullet to the ear so
who is liable?
Legal question
Who is liable for murder?
How it is possible to determine who fired the fatal shot with
regards to the different forms of causation? Is there a factual
and legal link to the taxi drivers eventual death?
Ratio
Factual link: Conditio sine qua non would he have died but
for the wound to his head? Yes, the wounds in his back made
him a sitting duck and therefore there was a link between
his death and the shots to the back and head
Legal link: all 5 judges had different opinions on the form of
the legal link
Judge Nicholas & Botha: Found both brothers guilty
based on the doctrine of common purpose (the conduct
of the one is imputed to the other) do not need to
prove causation
o Criticism: facts do not support this no proof that
they worked together
Tengrove: Not sure the back wounds would have caused
his death but applied the novus actus interveniens test
was used to identify the head wound as the aim cause

of death head wound not connected to back wound


(breaks chain of causation) = abnormal, therefore
Samuel will be liable for attempted murder
o Criticism: contradiction? Incorrect facts,
conclusion?
Jansen & Van Winsen: Did not know who shot fatal shot
but applied adequate cause and looked at context
- Swartpad is far away from medical aid he would have
died regardless (according to expert)
- Therefore, A Danils is the adequate cause of death
Reason for legal causation: to limit liability within reasonable
boundaries in line with policy considerations
No policy considerations to find that accused 1 should not be
liable

Decision
Andries Danils was held liable for murder (4/5 judges
agreeing) where as 2/5 judges found Samuel liable thus he is
liable for attempted murder

UNLAWFULNESS:

PRIVATE DEFENCE

S V ENGELBRECHT 2005 (2) SACR 41 (W)


Facts
Wife was abused by husband for years and could not take it
anymore
She bought thumb cuffs and cuffed her husbands hands
behind his head one night when he was sleeping
She then tied a plastic bag around his head and proceeded to
suffocate him
Her husband died from her actions
Legal Question
Can family violence be an excuse to ignore the requirement of
an attack being commenced or imminent?
Can the fact that Mrs Engelbrecht would definitely have been
abused by her husband again in the future be a reason to
justify her actions as private defence?
Ratio Decidendi
Mr Engelbrecht had been severely abusing his wife for a very
long time, and had he lived he would have continued to do so.
The attack did not fit the private law requirement of being
imminent but due to the fact that Mrs Engelbrecht had been
enduring years of abuse and it was very likely to happen again
private defence can be used for a cycle of abuse
Her defence must be reasonable, necessary and against an
unlawful attacker
Private defence must be a last resort but there is not absolute
duty to flee
Forfeited right to self-defence when she chose not to leave
abusive relationship = taking law into her own hands is not
permitted
It was usually accepted that if the accused could have averted
the attack by resorting to conduct which was less harmful
than that actually employed by her, and if she inflicted injury
or harm to the attacker which was unnecessary to overcome
the threat, her conduct did not comply with this requirement
for private defence.
Accused had not afforded the legal system, the South African
Police Service and society a fair chance of helping her - it had
not been objectively reasonable in all the circumstances for
the accused to kill the deceased when she did.
Mrs Engelbrecht had planned the deceased death it was
premeditated
Judgment:

Majority decision of the Court is that Mrs Engelbrecht did not


meet the standards required of the reasonable woman in her
position.
Therefore she was found guilty of the charge of murder of her
husband.

UNLAWFULNESS:

PRIVATE DEFENCE

EX PARTE DIE MINISTER VAN JUSTISIE: IN RE S V


VAN WYK 1967 (A)
Legal facts:
Van Wyk was a shop owner who was continually robbed
He had tried many methods to protect his shop (night guard,
watchdog, extra security measures) but none had been
successful
The police had said there was nothing they could really assist
him with
In a desperate attempt to protect his shop from yet another
robbery, Van Wyk set up a shotgun trap (with the knowledge
of the police) which would fire at and intruder who attempted
to climb in through the window of his shop
The shot would be aimed at the robbers upper leg the
intention was not to fatally wound him
A man did try to climb through the window and the trap
released a shot into his leg, from which he bled to death
Legal Question:
Can you kill somebody in private defence to protect your
immovable/movable property?
Ratio Decidendi:
The shotgun trap is dangerous it cannot tell who is
attempting to climb in and could injure and innocent third
party
There must be sufficient warning for this trap to be allowed
with private defence
Mr Van Wyk states that he had put up a written warning in
English and Afrikaans
J Rumpff believes that this is not sufficient: a robber might not
be able to understand these languages, and the written
warning was not enough (due to the seriousness of this trap)
Van Wyk used private defence as a ground of justification and
was discharged as such the Minister of Justice then
questioned whether this defence could stand
The State had not proved that there was a less dangerous yet
effective means which he could reasonably have adopted to
protect his property, and the possibility that the deceased
actually knew of the notice was not rebutted and was a
reasonable possibility which could not be rejected
Judgment:

Private defence can be used for cases such as this (in respect
of protecting ones property with a lethal weapon) but it is not
successful in this case due to the written sign being
insufficient warning to a would-be robber.

UNLAWFULNESS:

NECESSITY

S V GOLIATH 1972 (A)


Legal facts:
Goliath and friend came across a man on the side of the street
when walking through Knysna one day
The friend demanded the man give him a cigarette, and when
the man stated he had none, friend demands the man hand
over his money.
The man said no, and the friend takes out a knife and stabs
the man
The friend tells Goliath to help him finish the man off hold
him still while the friend stabs him continually until he dies
Goliath is hesitant to help him, and the friend threatens to kill
Goliath if he does not help him by holding the man down
Goliath holds the man down and when he is dead he helps his
friend move the body
The friend is charged and found guilty of murder what about
Goliath?
Legal question:
Can necessity be used in an instance when one person takes
the life of another to preserve his or her own life? Whose life is
more valued?
Ratio Decidendi:
Court a quo acquitted Goliath
Felt there was sufficient evidence to comply with necessity as
a ground of justification
Appellant division (Rumpff)
Goliath could not run away or escape his menacing friend and
he was forced to decide between his own life and that of the
man
The court made reference made to R v Dudley and Stephens
and found that it is human to regard ones own life above that
of an innocent third party
J Rumpff: cannot expect people to act as heroes by sacrificing
themselves, it is not fair to expect them to act beyond what is
human
- Cannot expect more than normal/average person
- Even the most morally upright person would regard their
life as more important than another
- Per definition: a person willing to sacrifice their life over
another = hero (not the average person)
- Therefore, do not set a standard higher than normal
person

- Be careful in evaluating this defence


No evidence that he could have run away (fled), younger than
other guy influence

Judgment:
Due to the fact that Goliath had no other option but to help or
risk his own life, and that it is human nature to value ones
own life above the life of an innocent third party, the defence
of necessity was allowed and the appeal dismissed
Court a quo judgment upheld
Minority judgement:
J Wessels whether possible to exclude fault as a requirement

Excludes unlawfulness or fault? Fault


Objectively speaking: cannot say his life is more valuable than
other person
If apply requirement of proportionality then requirement is
NOT met because interests/values are same
BUT Wessels willing to give defence: willing to exclude
requirement of fault
He did not act with fault can be acquitted on this basis

UNLAWFULNESS:

PUBLIC OFFICE

S V MOSTERT 2006 (1) SACR 560 (N)


Legal facts
Mostert was a traffic cop, instructed to bring a colleague, who
had disgraced the Municipal Protection Services in Newcastle,
to the headquarters
Instructed to do so by his superior, Mr Rothman
His colleague (the complainant) refused to go to the
headquarters with Mostert, and after checking with his
superior again, Mostert had to resort to using force to bring
him in, bruising his neck, chest and abdomen superficially
Court a quo had not found Mosterts defence of obedience to
superior orders to be successful and convicted him of assault
and crimen injuria (with regard to the racial slur = intention
infringement on right to dignity)
Legal question
Can the defence of obedience to superior orders be successful
when the accused used force that was not issued but would
not be outside the line of duty in order to carry out the order?
Ratio Decidendi
Three requirements for defence to be successful:
1. The order must emanate from a person lawfully placed
in authority over the appellant.
2. The appellant must have been under a duty to obey the
given order.
3. The appellant must have done no more harm than was
necessary to carry out the order.
First two requirements are fulfilled Mr Rothman is legally a
superior to Mostert, and it is within Mosterts line of work to
have received that order
Appellant (Mostert) admits his force was not authorized
Superior orders is usually a defence for military persons, but
the Court held it is allowed to be extended to traffic cops
When Mr Rothman gave Mostert the order again, he inferred
that in any way possible (including necessary force) Mostert
must bring his colleague to the headquarters not a
reasonable inference
Court could not prove that Mostert had the intent to assault
his collegue
Judgment:
Appeal upheld for conviction of assault defence of superior
order granted.
But, appeal against charge of crimen injuria was dismissed.

UNLAWFULNESS:

CONSENT

S V W EN N ANDER
Parties
Complainants: two girls aged 13 at the time, another ages 9 at
the time
Defendants: Husband and wife (wife was a Sunday school
teacher)
Legal facts
Man and wife lured young girls between the age of 9 and 13
into their home, and told them that they could not have
children of their own, and that if the girls slept with the
husband, they would be cured of their infertility.
Girls accused the defendant of rape as man and woman had
been fraudulent and therefore they had not given consent (not
real, informed or voluntary)
Defendants claim that the girls had consented to the sex; they
knew what was being asked of them and had gone along
willingly.
Legal Question
Can the girls willingness be considered consent when the
purpose of the sexual intercourse had been misrepresented,
even though the nature of the act was fully communicated?
Ratio Decidendi
Court a quo
Dismissed their defence of consent and convicted the
defendants on 3 charges of rape and accomplice to rape.
Appeal
Any girl who has sex, consenting or not, who is under the
age of 12 will be considered to have been raped. Therefore
the charge of rape in terms of the 9 year old girl succeeded.
The two girls aged 13 cannot claim to be fully ignorant at
their age
But both of girls were under the legal age of consenting (age
16), and therefore the accused were guilty of contravening s
14(1)(a) of the Sexual Offences Act 23 of 1957.
Although the man and wife lied about the sexual intercourse
curing their infertility, they did not hide any aspects that
were expected of the girls therefore they were fully
informed about the nature of the act
Judgment

The appellants were charged of statutory rape on those two


counts. Both appellants will serve 15 years imprisonment for
the charges of rape, statutory rape, and accomplice to each
charge.

ELEMENT

OF THE CRIME: CRIMINAL CAPACITY

S V CHRETIEN 1981
Legal facts
Accused was at a party & drank a lot
Chretien decided he wanted to leave got into car to drive off
(under the influence)
He saw that people were standing in the road, but he was
convinced they would move out of the way. But they didnt 1
dead, 5 injured
Charged: murder & attempted murder
He argued that he lacked intent court accepted evidence
acquitted
Legal question
Can intoxicated accused be held liable for assault (which
requires intent) on a charge of attempted murder?
Ratio
Court a quo
Judge said he was bound by Johnson-case
Court found him guilty of culpable homicide but acquitted him
of attempted murder & common assault
Appellate division: Court decision (Judge Rumpff)
Legal principles
Common assault requires an intention to assault if intention is
lacking due to voluntary intoxication, then Chretein cannot be
convicted on this charge
Intoxication may influence criminal liability in exactly the same
way as youth, insanity, etc.
Criminal liability depends on degree of intoxication: may
exclude voluntary conduct, criminal capacity or intent or be a
mitigating factor at sentencing
- Involuntary intoxication - If you commit a crime in an
intoxicated state you wont be held liable for the
consequences.
- Actio in libera causa - Held criminally liable when you drink
in order to gain the courage to commit an act.
Applied to facts
Chretien said he wasn't able to form the intention to harm the
people. He never argued that he lacked criminal capacity, only
intention to kill anybody.

Judge Rumpff said that if you cannot form intention then you
cannot be found guilty of a crime requiring it, therefore
Chretien could not be found guilty of common assault [Judge
confirmed the court a quos findings]
Intoxication can affect your mental abilities
It depends on degree of intoxication: Chretien was acquitted
due to a lack of fault (intention), not due to lack of criminal
capacity
Rumpff argues that if missing an element of the crime, due to
intoxication, it is easier to accept than just following policy
considerations
Must consider all the relevant evidence and degree of
intoxication in deciding if successful defence or not
This defence is difficult to raise: requires a large amount of
evidence
The judge rejected the distinction between general and specific
intent - intention is intention. The distinction no longer forms
part of SA law

Judgement
Accused was acquitted based on defence of lack of intent
Appeal is dismissed

CRIMINAL

CAPACITY: PROVOCATION

S V EADIE 2002 (SCA)


Facts
Driving under the influence
Eadie kept getting irritated by care behind him e.g. flashing
lights, overtaking several times
Eadie stopped the car and confronted him - hit him with a
hockey stick
Wife had driven away when they stopped, came to pick him up
again
Eadie went back to scene, got rid of hockey stick; showed the
police a different pair of jeans to the bloody pair he had on,
but was caught out by a witness
Defence: lacked conative capacity (non-pathological criminal
incapacity)
Legal question
Is the defence of provocation relevant today?
Does road rage, as a form of lack of conative capacity, have
any standing in SA law?
Ratio
SCA confirmed court a quo decision Eadie acted in
purposeful, goal-driven manner not loss of control, loss of
temper
NOT succeed with defence of non-pathological criminal
incapacity
Judge Navsas judgement
The complete defence of non-pathological criminal incapacity
due to provocation/emotional stress resulting in a (subjective)
lack of conative capacity
Defence retained?
Judges should not just allow this defence must approach
defence with extreme caution
Cannot just believe what somebody says about their state of
mind expert evidence is important [cannot just believe
accused ipsi dixit]
Take into account: what did before and after incident help
figure out state of mind
- Eadie: hid incriminating evidence, took hockey stick etc.
- Reject ipsi dixet.
- Infer from surrounding circumstances that could
subjective control himself

State of mind
Human experience
Social norms
Social interactions
Use policy considerations rather than legal principles
Court found that he knew what he wanted to do lost temper
and not the ability to control himself

Done away with?


- Because it overlaps completely with the objectivelydetermined defence of sane automatism

Doesnt like defence [para 61] but should do away with


defence? Or maintain for deserving cases.

Contrasting view of Burchell & Snyman


Burchell
Judge N would gave
wanted to change defence
Is of the view that the
subjective test for
establishing conative
capacity ought to have an
objective dimension that
determines whether
accused could reasonably
be expected to have acted
differently in the
circumstances

Snyman
Rejects: lenient approach
Rejects: unyielding
approach
Suggests going back to view
transkeian penal code approachish (find guilty of lesser crime)
The defence of provocation in
favour of a middle ground which
views provocation as a partial
defence

ELEMENT

OF THE CRIME: FAULT

S V GOOSEN 1989
Legal facts
Accused was part of a gang
The gang planned to rob an old man. They waited until the old
man came out from his building and got into his car they
followed him, stopped him and confronted him.
One robber had semi-automatic weapon and others hit him
The old mans car rolled forwards and gun went off
accidentally and killed the old man.
The accused is the man holding the gun, Mazibuko, who
claimed that he had pulled the trigger by accident or
involuntarily
All of the members of the gang were charged with murder &
robbery (common purpose)
Goosen had bad legal advisor, told him to plead guilty
followed advice tried separately from other robbers
Other 3 gang members were acquitted of all charges
Legal question
Can Goosen be held responsible for the death of the deceased
when the manner in which the deceased died was not
foreseen i.e. it differed markedly from the manner in which the
accused foresaw?
Ratio (appeal)
Cases of common purpose: state does not need to prove
causation Goosen could not use defence of novus actus
intervenius
Common purpose:
Active participation in common purpose + requisite
guilty mind (doesnt matter that did not contribute
casually to unlawful consequence)
Not required that there is causation between their
association and unlawful consequence
Did
it
matter
that
the
death
occurred
in
a
substantially/markedly different way to which Goosen
foresaw?
He had foreseen the possibility that one of his fellow
robbers might intentionally shoot the deceased killing
him
Court used inferential reasoning (subjective test): took
into account the strange way death occurred, Goosen

was poorly educated (Gr8) = he did not foresee manner


in which death occurred
Court: Because death occurred in a way that was not
foreseen not proved dolis eventualis must have been
substantially the same manner in which the accused foresaw
correlation between foreseen way + actual way
HOWEVER, court uses culpa to convict a reasonable man in
this situation would have foreseen the possibility of the
prohibited consequence & taken steps to prevent it
Accused did not meet the standard of a reasonable man

Judgement
Intent element is not satisfied if (foreseen) consequence
occurs in a way which differs markedly from the way in which
the accused foresaw the causal sequence
Appellant was not found guilty of murder but guilty of culpable
homicide [6 years imprisonment]

IGNORANCE

OF THE LAW

S V DE BLOM 1977
Legal facts
A wealthy Argentinean woman was living in South Africa and
wanted to fly home to visit her family
She was flying from Cape Town Airport but the police were
tipped-off and stopped her and found $40 000 cash and a case
of valuable jewellery (hidden in lining of bag) in her luggage
Both money & jewellery more than allowed amount to take out
of country [contravene Currency and Exchange Act 9 and
Exchange Control Regulation]
Defence: accused didnt know it was a crime (ignorance of the
law)
Legal question
Can ignorance of the law be a defence in South Africa?
Judgement (appeal): Judge Rumpff!

Rumpff: clich to say that everyone is presumed to know the


law in SA
The court must consider whether she acted intentional (mens
rea)
Can infer from facts whether she subjectively had
knowledge of the law or whether she was using it as an
excuse to escape liability
Court looked at the circumstances & facts of case: accused is
wealthy, she had taken that amount of jewellery out of the
country before
Money
She has intent
She knew about money & finances not feeble woman
was wealthy and managed her own affairs
It was clear she tried to hide the money away in lining which
the court can infer meant that she knew it was a crime
The court found that there was a plot between her and her
husband to take money out of country
Jewellery
Court could infer that it is reasonably possible that she
really didnt think she needed permission to take jewellery
= lacked intent as she was truly ignorant
She wore more jewellery than average South African & had
removed this jewellery from RSA many times before and
thought it was allowed

Even if culpa (negligence) is sufficient form of mens rea in


the present offence, the state failed to prove the required
mens rea beyond reasonable doubt

INTENT:

PUTATIVE GROUND OF JUSTIFICATION

S V JOSHUA 2003 (SCA)


Legal facts
Joshua and his family lived in Delft.
His wife was robbed after which she phoned Joshua & told him
about her attackers described them to him.
Joshua wanted to find robbers he and a friend went to look
for them with a fully loaded shotgun
Saw group 5 youths (14-17 years) and knew that they were
members of the Hard Livings gang and the one boy met the
description of the robber, Malin.
Joshua approached gang members and asked that they give
purse bag. Malin refused.
Joshua then shot and killed Malin, Fabian and Mervin. He also
shot Ivan.
Ettian ran away but Joshua ran after him. Ettian ran into
Hassans house, peaceful house, Joshua killed Hassan, Jacobs
& the dog.
Legal question
Is Joshua guilty of murder and attempted murder?
Ratio

1st situation:
- Malin: he broke bottle, sworn at Joshua and begun
approaching him. Malin was a gangsta. The courts
allowed Joshua to succeed with private defence, as
he could not run away.
- Fabian & Mervin: Both were shot from the side. Court
found that they were not advancing towards Joshua
but they were still so close to Joshua that he could
have believed that they were a danger. Joshua guilty
of culpable homicide. [If really thought he was in
danger putative PD].
- Ivan: no intention = no crime. But there is no such
thing as putative negligent murder. Therefore,
acquitted of crime.
2nd situation
- No defence for killing people in house
- Guilty of murder on all counts

INTENT:

PUTATIVE GROUND OF JUSTIFICATION

S V NAIDOO 1997
Legal facts
A young man and his wife & child were in their family home
He heard noise at the gate and called out but received no
response.
The family had many attempted robbery and were frightened
He had gun with him and fired 1 shot
The person at the gate was Naidoos father whom he had shot
and killed
Ratio
He foreseen the possibility of shooting somebody the gun
was at shoulder height.
Important that he had no reason to kill dad did not intend to
kill him
Have defence?
- Private defence? No, there was no unlawful attack thus the
requirements were not met
- An accused can only be guilty of murder where there was a
consciousness of wrongfulness (knew acted unlawfully).
- Naidoo genuinely thought he was entitled to shoot
because he subjectively thought he was in danger
- Factors taken into account: he was young, previous
burglaries, genuine belief that person outside, dangerous
neighbourhood, only man in the house want to protect
his family, he would not have shot if known it was dad.
- The courts found that the accused did not have dolus
(consciousness of wrongfulness)
- Negligence? Court found that objectively, a reasonable
person wouldnt have fired but rather have taken other
steps before shooting such as firing a warning shot, raised
an alarm, closed the door. The accused had options
available to him.
The court found that Naidoos shot was premature and
excessive he did not act reasonably
Judgement
Guilty of culpable homicide

N EGLIGENCE

S V NGUBANE 1985 (3) SA 677 (A)


Legal facts
Appellant was intoxicated, got into an argument with a woman
and stabbed her 5 times.
It was established that the appellant was not excessively
drunk and still control of his faculties to a degree.
During trial court proceedings, prosecutor is willing to accept a
guilty plea of culpable homicide from the accused, to which
the accused agrees.
The court hears evidence and decides that the accused does
have the necessary intention (dolus eventualis) and convicts
the accused of murder instead of culpable homicide.
Appeals whether this decision is fair and whether or not culpa
and dolus can be substituted for each other.
Legal Question
Was it within the Courts power to change the plea, which the
accused and prosecutor had both already agreed to? Can
dolus and culpa be interchange-able and do they overlap?
Ratio decidendi
Judge looks at difference between intent and negligence and
comes to the conclusion that the two are completely different
and cannot be substituted for the other
Dolus is a volitional state of mind
Culpa is not meeting a specific standard
Facts of case illustrate the difference: appellant had no
premeditation, some provocation, liquor, stabbed woman. He
killed intentionally and foresaw consequence (dolus)
View from different angle: the appellant failing to curb his
emotions falls short of test for reasonable man (who would
have not done this) = negligently. On this approach dolus does
not exclude culpa.
Stabbing someone = dolus eventualis is clear
The fact that he did not stop shows he does not comply with
the test for the reasonable man either = culpa is also valid
Snyman completely disagrees = says its a procedural
problem and therefore requires a procedural solution.
Judgment
Found guilty of culpable homicide and given a sentence of 7
years 95 would be too lenient for this situation)

DOCTRINE

OF STRICT LIABILITY SHOULD NOT BE APPLIED IN OUR LAW

S V VAN DER MESCHT 1962


Legal facts
Accused was a miner who was not receiving enough income to
sustain himself and his family.
Sold an amalgam with contained gold and him and a friend
decided to smelt the amalgam (which contained mercury) to
get the gold substance.
He boiled the amalgam in a steel pot in his kitchen and the
substance released a poisonous gas which killed 4 children
and his friend
Appellant was charged with culpable homicide for his
negligence as well as owing to the fact that he had been
committed an unlawful act (and therefore could not escape
liability)
Legal Question
Did the appellant act in accordance with the reasonable man
with regard to his lack of foresight into the effects of a
relatively unknown substance? Can an accused be charged
based on the facts that he had been committing an unlawful
act only?
Ratio Decidendi
The appellants actions need to be measured against that of
the reasonable man.
A reasonable man could not have been expected to know or
foresee the possibility of the amalgam emitting such a severe
degree of poisonous gas. And therefore could not have been
expected to take action to prevent it. The appellant therefore
complied with the reasonable man tests and cannot be
convicted of culpable homicide.
Court says they should be careful to revert too quickly from
could have foreseen to ought to have foreseen
Evidence was given by experts who said that type of poisoning
hardly ever happened and that one cannot be expected to
know of the side effects of mercurial gas.
Appellant also does not have the requisite subjective intention
= his intention was to get the gold, not to kill his own family
and friend.
None of the judges found that the appellant could be held
solely on the basis that his actions were unlawful.
Judgment

Majority finding that appellant cannot be convicted of culpable


homicide as he had complied with the measurements for a
reasonable man. A minority judgment found that being a
miner, the appellant should have and could have known better
and therefore must be charged for his lack of compliance with
the reasonable man test.

N EGLIGENCE

S V VAN AS 1976
Legal facts
A young, relatively strong man got into an argument with an
older fat man. The big man got very angry with the appellant
and threatened him. The appellant responded by hitting the
big man in the face.
The man lost his balance and fell to the ground, hitting his
head on the cement and later dying from this injury.
Legal Question
Can negligence be applied when the accuseds victim had
died in abnormal circumstances?
Ratio: Judge Rumpff
Court a quo
Found the appellant guilty of culpable homicide due to his
negligence for not foreseeing that the big man would hit his
head and possibly die.
Appellate Division
Appellant could not say he lacked causation on the basis of
novus actus because of the thin skull rule you take your
victim as they come
The causation requirement is met: there is no novus actus
To determine whether the accused was negligent, the
reasonable man test must be used.
Would the reasonable man have foreseen the death of the
deceased in such a way, and would the reasonable have
taken steps to prevent this? The answer for these two
questions has to be no.
Therefore, the appellant has indeed complied with the
reasonable man and cannot be held liable for the death of the
deceased.
Judgment
Appeal is upheld and the conviction of culpable homicide is
dismissed and replaced with a conviction of assault.

C OMMON

PURPOSE

S V SAFATSA AND OTHERS 1988 (1) SA 868 (A)


Legal facts
Also known as the Sharpville Six case, appellants 1 to 8 were
convicted of the murder of deputy major in Lekoa.
A mob formed outside his house when it was suggested that
service fees be raised, stones were thrown at the deceased
house which eventually turned into petrol bombs.
The deceaseds car was dragged into the street and set alight,
and the deceased attempted to flee his burning house but was
captured by some men and beaten with stones.
He was then dragged to his burning car and set alight.
Causation cannot be proved for the appellants, common
purpose with no causal link needing to be proved.
Court a quo convicted all accused, besides no. 5 and 6, with
murder and therefore received the death penalty and were
also convicted all the accused of subversion for all.
Appeal against these convictions.
Legal Question
No causal link between each accused and the death of the
deceased, can conviction nevertheless be found on the basis
of the common purpose doctrine? And how is active
association measured?
Ratio Decidendi
Court first looked at the active association of each accused in
order to prove common purpose was relevant in each case.
Evidence and eye witnesses were consulted.
Accused no 1: grabbed deceased and tried to disarm him as
he attempted to flee, also threw the first stone at the
deceased when he was disarmed.
Accused no 2: threw stones at the deceased as well as at his
house
Accused no 3: grabbed deceased and disarmed him
Accused no 4: part of the crowd shouting we need to kill him
and slapped another woman for not wanting to burn the
deceased
Accused no 5&6: part of the crowd, no proof from the State to
prove they had intent
Accused no 7: part of the crowd, assembled petrol bombs, set
kitchen on fire, and helped push the car into the street.
Accused no 8: also made petrol bombs, gave instructions for
use, helped push the car
It was proved that excluding accused 5 and 6, all others had
sufficiently actively associated and therefore the action

resulting in causation can be imputed to all accused, no need


to prove causation for each accused separately
All accused on trial (6 accused) had actively associated
themselves with purpose which mob wish and did achieve to
kill Dlamini.
No need to have prior agreement to murder before the time.
Had necessary fault (shared aim to kill)
The conduct, of whoever caused death, is imputed to all
accused

Judgment
Appeal is dismissed, charges are upheld.

C OMMON

PURPOSE

S V LUNGILE AND ANOTHER 1999


Legal facts
A group of robbers attempted to rob a shop
There was a shoot out in broad daylight and in front of a police
station and an innocent lady was killed unsure whether
bullet from robbers or policemen killed her
The robbers were charged with robbery and murder
Legal question
Can Lungile, one of the robbers, be held liable for the murder
of the lady?
Ratio decidendi
Attempt to raise various defences:
Causation: police shooting was a novus actus intervenis
court rejected
Unlawfulness: necessity court held that the robbers
had not been forced to participate and were voluntarily
robbers (Bradbury case)
He argued that he was not part of common purpose
because he had left before the shooting had begun i.e.
he had withdrawn when he ran away
- Court: Lungile did foresee the possibility of death
when he agreed to commit robbery in broad
daylight & participated in robbery (possibility that
may need to subdue some victims) he had
necessary mes rea in form of dolus eventualis
Dissociated: left scene before shooting began
dissociated?
- Factors:
Time: last possible time
Voluntary: when say police
= No effective dissociation
Judgement
Lungile was held liable for the death of the lady

COMMON PURPOSE

S V DUBE 2010
Legal facts
A group of bank robbers plan to drill into FNBs vault
meticulously planned
They bribed the security guard & policemen
They were so confident that they decided not to take their
guns with but the plan went wrong when the security guard
went to other policemen and told about the plan
Robber had a crowbar and policeman thought was a threat
shot & killed
Legal question
Did other robbers foresee possibility one of them might be
killed and can they be held liable for the death of the robber
based on this knowledge/foreseeability?
Ratio
Facts: did not take weapons from which the court can infer
that the other robbers did not foreseen that one of them might
have died
Judgement
Appellants did not subjectively foresee (no dolus eventualis) =
not guilty of murder charge

COMMON PURPOSE

S V MZWEMPI 2011
Legal facts
Attack between two clans resulting in several deaths , injuries,
burnt huts.
A few men were caught and charged with the collective
actions of the clan
The other clan had known there was a plan to attack and had
attempted to escape
Used common purpose doctrine to charged the accused with
murder, attempted murder and arson.
Appeal case: appeal against the convictions in the trial Court.
Legal Question
When applying the common purpose doctrine based on active
association, should the court use the limited scope known as
the Safatsa/Mgedezi method, or the wider scope, known as
the Nzo mthod?
Ratio Decidendi
Evidence and eye witnesses were used to determine how the
accused were involved (actively associated) with the common
purpose.
Accused no 4 is the only appellant: appellant was heard
saying to his companions that they should not miss the 4am,
and he was also heard talking to some of the hiding clansmen,
he was seen carrying his shotgun but there is no proof of his
actual shooting.
The proof of active association is relatively weak and can only
be used for a conviction if the scope for active association is
wide (Nzo method)
Court analyses the two methods and comes to the conclusion
that the Nzo method is not very fair, it allows an accused to
have the causal conduct imputed upon him when he has done
very little to actively associate himself with the common
purpose
It is decided that each accused should be measured by his
own conduct of active association, as stated in the
Safatsa/Mgedezi method.
Mgedezi sets out 5 criteria on which the accused must be
measured: presence at the scene, aware of the attack,
intention to commit to common cause, have performed an act
of association, and have fault.
The appellant in this case cannot be proven to have intent to
commit the common cause and there is no evidence proving

he had performed an act of association for this reason he


cannot be held liable as part of the common purpose doctrine.
Judgment
Appeal is upheld and the charges against the appellant are
dropped.

ACCOMPLICE LIABILITY

S V WILLIAMS EN N ANDER 1980


Legal facts

Hard Livings gang were on train and had not plan do anything
but the gang attack and kill another passenger on train
1st accused: kill the victim with a knife
2nd accused: grabbed victim around the neck and dragged him
across coach
3rd accused: stabbed the victim with bottle neck
4th accused: stood and watched

Legal question

1st & 3rd = perpetrators


2nd & 4th = what is their liability?

Ratio

Convicted of accomplices but appealed


Distinguished an accomplice from a perpetrator
Perpetrator must satisfy the requirements of the definition of
the crime, whereas accomplice is not a perpetrator (lacks
unlawful conduct)
Liability of the accomplice is based on his or her own unlawful
conduct or fault
Causal connection (legal or factual) between the accomplices
assistance and the commission of the crime by the
perpetrator(s) required
Authors: Snyman said 2nd should have been a perpetrator
(causual link) if you assist in murder, you are a murderer
Burchell: only factual not legal actually sentencing for what
person did (pro fair labelling he held did not actually kill but
made easier to kill more fair to label as accomplice rather
than perpetrator)
Accomplice: assists or further the crime did not commit
crime himself but furthered the commission of the crime that
another person committed

Judgement

2nd? He dragged accomplice to murder


4th? Not liable

INCOMPLETE

CRIME : ATTEMPT

R V SCHOOMBIE 1945
Legal facts
Schoombie was a potential arsonist
Poured petrol over and under the door of shop
He had flammable material and matches with him
As about to set shop alight, police appeared
Charged with attempted arson
Legal question
Did S go far enough for it to be seen as an uncompleted
attempt?
At what stage does an accused go from the preparation stage
to the commencement of consummation stage?
Ratio
Court a quo
Found that he had gone far enough to the commencement of
consummation stage before he was interrupted
Appeal against conviction stating he was still in a stage of
preparation, no match had been lit, petrol had merely been
poured.
Appeal
Arson? Arson is setting a fire unlawfully the accused had not
done this thus he is not guilty of arson
Attempted arson? Schoombie argued that he was only
preparing and had not completed the attempt
Court had to determine whether there were grounds for
conviction based on legal evidence and whether accused had
passed stage of preparation
Courts have deliberately refused to lay down a ground for
determining the line between preparation and
commencement and as such it is a value judgment based on
the facts of the case
Inferred that accused mind was properly set up as fire dries
quickly and so he would had to have lit shop on fire almost
immediately and would have done so had the policeman not
showed up.
Fact that he had made up his mind to carry out his evil
intention was a ground for conviction
Decision

Schoombie was found guilt of attempted arson (complete


attempt) because he had an obvious purpose which the court
inferred

ATTEMPT

R V HLATWAYO 1933 TPD 441


Legal facts
Accused had placed caustic soda in her masters porridge in
order to poison him
She was well aware it was poison and had the necessary
intent
She told a fellow servant her plan and the fellow servant said
she would go tell the master; at this point the accused
removed the porridge from the stove and threw it out.
The accused claims that she had withdrawn from the attempt
and cannot be held liable, as she had not gone passed the
preparation stage.
Legal Question
Can an accused be seen as withdrawing from the attempt
after the commencement stage?
Ratio Decidendi
The accused had already placed the poison in the pot on the
stove knowing that soon her employer would come down to
take over with the food and serve the porridge.
Were it not for the other servant, she would not have
withdrawn from the conduct
Accused had placed caustic soda in the pot and had therefore
completed all she had set out to do and therefore had passed
the stage of preparation.
Appeal Court found that even voluntary withdrawal after the
commencement of consummation stage does not qualify as a
defence to attempt.
Withdrawal after the commencement stage therefore does not
exclude criminal liability.
Judgment
Appeal is dismissed; accused is rightly convicted of attempted
murder.

ATTEMPT TO COMMIT THE IMPOSSIBLE

R V DAVIES 1956 (3) SA 52 (A)


Legal facts
Appeal case against the conviction of attempting to abort an
already dead foetus.
Woman had already started taking injections and such in
preparation for the actual abortion operation.
Appellant claims that mere intent to commit a crime is not
enough when it is absolutely impossible to achieve the aims
(foetus already dead)
Appellants had been convicted of one count of culpable
homicide (for the woman who died during a procedure), and 2
counts of procuring abortion.
The first appellant was a doctor and the second appellant was
his assistant.
Legal Question
Can accused be found guilty of attempting to abort a
pregnancy if the foetus is already dead? I.e. guilty of an
attempt to commit the physically impossible?
Ratio Decidendi
In English and American law it is decided that attempting to
perform an abortion on a woman who is not pregnant still
constitutes as an attempt to commit the impossible.
Conviction can only occur where the accused have already
entered into the commencement of consummation stage
Fact that the woman had already started taking the injections
indicated that she had in fact entered into the commencement
phase, as this already starts to abort the child.
It is not inconceivable that the injections treatment had
already caused the death of the foetus, though there is no
definite proof of this.
Court looks at case subjectively considers the accused evil
state of mind and intention.
Some aspects of the objective test must be considered too in
order to determine that the crime is in fact a crime punishable
in SA law.
Judgment
Appeal is dismissed
Court found that there was intent
The accused was found guilty of attempted abortion