An historical overview of the defence Non-Pathological

Criminal Incapacity.

Non-Pathological Criminal Incapacity1 refers to a situation in which a person lacks criminal

capacity – where such incapacity is not attributed to a pathological mental disturbance (i.e.
"emanating from a disease”). This defence is usually presented as a form of “automatism”
-where the accused, at the moment of the commission of the act, had no conscious control
over his actions and by implication lacked culpability.

In the following paragraphs a brief exposition on the history of this controversial question will
be given, followed by a short commentary on the defence itself.

South African Law before 1987 refused to recognise Non-Pathological Criminal Incapacity as
a complete defence since such a defence was regarded as practically synonymous with one
of provocation – rightly so when considered from a purely jurisprudentially sound approach
where the objectivity of the law remains intact, ensuring all members of society are treated
on an equal footing.

Then in two controversial rulings2 the courts completely disregarded legal policy by allowing
Non-Pathological Criminal Incapacity (in casu referred to as provocation) to lead to a
complete acquittal. Following these judgements, the courts’ reluctance in considering proper
legal policy led to far-reaching implications as anyone charged with a crime where
“emotional duress” was involved, could now be completely absolved from criminal liability.

Then, however, the court in Eadie3 adopted a completely different approach by linking the
defence of Non-Pathological Criminal Incapacity to one of sane automatism, which in
modern practise, rarely succeeds.

A problem, however, remained as the court did not expressly abolish this defence, leaving a
statement filled with ambiguity.

1
Although this “erudite sounding expression” – as Snyman put it, wasn’t coined until much later, it will
be used throughout in the interest of conformity.
2
Campher 1987 1 SA 940 (A); Wiid 1990 1 SACR 561 (A)
3
2002 1 SACR 663 (SCA)