C.

CAUSATION

Introduction

Causation is not a universal requirement for all forms of criminal liability. In crimes that involve
an unlawful consequence, rather than an unlawful circumstance, there must be both a factual and
legal causal link between the initial act or omission and the ultimate unlawful consequence. Most
often, problems of causation arise in homicide cases where there must be a causal link between
the initial act and ultimate death.

Liability in a common purpose crime is not dependent upon proof of a causal connection between
the acts of every participant. Therefore, before examining causal questions, one must first
identify that the case does not involve participation in a common purpose.

Theories of Causation

Within the category of those who accept the conditio sine qua non test there are two subdivisions:
i) De Wet and Swanepoel, who see it as the exclusive test of causation.
ii) Milton, van Oosten and Whiting, who regard it as a preliminary and essentially
factual inquiry, followed by an investigation into legal causation.

Most writers accept that the conditio sine qua non test casts the net too wide and a further policy
limitation on liability is required.

Factual Causation: The ‘Conditio Sine Qua Non’ Test

The sine qua non test for determining factual causation has received a fair amount of judicial
approval in our courts. If the consequence would not have resulted but for the conduct of the
accused the conduct of the accused is a factual cause of the consequence. In the case of omissions
we would ask, whether the consequence would not have resulted had the act that should have
taken place actually occurred (i.e. S v Van As and S v Skosana). In other words, an act is a cause
of a consequence if it cannot be notionally eliminated (or notionally added for an omission) from
the chain of events, without the consequence also disappearing. In the context of homicide,
causing death means hastening death (i.e. everyone dies at some stage). In other words, but for
the conduct would the deceased have died when he did.

In S v Haarmeyer 1971 (A), the AD held that factual causation will be present where the perpetrator is a
sine qua non (but for cause) of the death.

In Minister of Safety and Security v Skosana, the AD discussed the conditio sine qua non test of causation.
Corbett JA in the majority, defined factual causation in terms of whether the negligent act or omission in
question caused or ‘materially contributed’ to the harm in question. An act or omission must pass the
conditio sine qua non test. The minority agreed with the use of the conditio sine qua non test.
S v Daniels: the case without a ratio
In S v Daniels, Jansen JA and Trengove JA held that the preliminary enquiry into factual causation is
made in terms of the sine qua non test.
1. Jansen JA’s approach (concurred in by Van Winsen) was that, by applying the conditio sine qua
non test, the mortal wounds inflicted by the first accused were sufficient to be the factual cause of
death, and on policy grounds, the legal cause as well.
2. However, Trengove JA and Nicholas AJA (obiter dictum as he based his decision on common
purpose) were of the view that this was not sufficient to render the first accused’s conduct both
the legal and factual cause of death.
3. Trengove JA, Nicholas JA and Jansen JA, all recognized that the conditio sine qua non test casts
the causal net too wide, and has to be supplemented by legal causation, based on policy issues.

In S v Daniels 1983 (A) the first accused fired three shots at the deceased which mortally wounded him. As
he lay dying, the second accused fired an executioners shot into his head which was the medical cause of
the deceased’s death. The deceased would have died from the two wounds in the back if no medical
treatment arrived within half an hour. Both accused were convicted of murder in the court a quo and
convicted to death. They appealed to the AD.
1. NICHOLAS JA: Held that unless the two accused had a common purpose to kill the deceased,
the first accused’s conviction for murder cannot stand. However, as they were indeed acting with a
common purpose, they are both guilty of murder and robbery.
2. JANSEN JA (VAN WINSEN AJA concurring): An application of sine qua non: If the first
accused had not produced the gun, shot the deceased twice in the back and the deceased had not
collapsed from those wounds, the second accused would not have had the opportunity to fire the
shot to the ear which physiologically produced his death (thus he was the factual cause according
to the conditio sine qua non test). Jansen also found, on policy grounds, that the first appellant was
also the legal cause (but doesn’t state those policy reasons). The state has not proved the second
appellant’s participation in the crime beyond reasonable doubt. Therefore the first accused is
guilty, not the second.
3. TRENGOVE JA: the first accused is only guilty of attempted murder. There is a possibility that
the second accused fired the fatal shot, which would have served to break the causal chain
between the first two gunshots and death (i.e. a novus actus).

Legal Causation

While there is some agreement that legal causation is defined by policy limits on the extent of
liability, there is not agreement on the correct test. Milton mentions the following tests:
i) Direct cause
ii) Substantial factor
iii) Causa causans
iv) Proximate or adequate cause (of European origin, favoured by Snyman)
v) Absence of novus actus interveniens

The adequate cause and novus actus tests overlap to the extent that proponents of both regard the
same case, R v Loubser as confirmation of their respective view.
In R v Loubser 1953 (W): X inflicted a stick wound on Y’s head. Y did not heed his employers advice to go
to hospital and bound his head with dirty rags. He contracted tetanus and died. Rumpff J considered that the
test was whether Y’s conduct was abnormal or unusual in the light of human experience . It was held
that it is not unusual for a person in a rural environment to do what Y did – therefore X had caused Y’s
death.

Smorgasbord Approach to Legal Causation

A smorgasbord1 approach to legal causation allows the courts to weigh in the balance a variety
of policy factors in order to limit the scope of liability created by the broad factual inquiry. The
following inquiries are used to limit liability on the grounds of legal policy:

1) Was the consequence a direct consequence of the conduct or did an ‘abnormal event’
(novus actus interviniens) break the causal chain.
2) In the light of human experience, would this type of conduct normally lead to this type of
consequence (the adequate theory of causation)?

The unifying feature of the two inquiries is determining what is normal or abnormal in the light
of human experience.

Our courts have not consistently applied any one test of legal causation. There is support for a
composite test that includes a variety of policy factors. In this way an attempt is made to
reconcile the different tests. What has been definitively decided is that legal causation is required
in addition to factual causation for liability for a consequence crime can arise.

Burchell’s focus is on the novus actus interveniens and adequate cause theories, both of which are
examined in S v Daniels. But it’s important to note that no single test of legal causation will
provide all the answers, and all the tests that have been put forward have a common objective: to
limit the scope of criminal liability on the grounds of public policy.

Crucial Case for Legal Causation

In the case of S v Mokgethi, the deceased was shot and paralysed during a bank robbery. As a result of his
own negligent failure to follow medical advice, the deceased developed septicaemia and died. The court
emphasised the merits of a general, supple test which could accommodate policy limits. The court
formulated the ‘broad test’ as essentially the enquiry as to whether there was a sufficiently close
connection between the accused’s conduct and the unlawful consequence. The court did not favour any one
test for legal causation, but said that the court can take into account any one or more of the following
factors: (a) absence of a novus actus, (b) direct cause, (c) adequate cause, (d) proximate cause or (e)
forseeability.

1. The Novus Actus Interveniens Test – conduct that is ‘abnormal in light of human experience’

This test determines whether the causal chain was broken by an abnormal, intervening act. The
normality or abnormality of an act is judged according to general human experience. The
following factors are important in determining whether an act is a novus actus interveniens:
1. If it is ‘abnormal or unlikely’ in the light of human experience

1
A buffet meal of various hot and cold hors d'oeuvres, salads, casserole dishes, meats, cheeses, etc.
 2. An intervening act is more likely to be regarded as a novus actus where the injury
inflicted by the accused is not mortal. For example, the head wound inflicted by the
second accused in S v Mbambo. A wound that was originally thought to be mortal may
cease to be mortal as a result of successful medical treatment (Mokgeti)
3. The accused need not be the sole cause of the consequence. If two people inflict wounds
one after the other, but the wounds combine physiologically to cause death, the
subsequent wounds are less likely to constitute a novus actus.
4. Voluntary conduct is more likely to be regarded as a novus actus.
5. An abnormal event which would otherwise rank as a novus actus does not so rank if it
was actually foreseen (or was reasonably foreseeable in negligence), or planned by the
accused.
6. The victim’s pre-existing physical susceptibilities never rank as a novus actus
interveniens (‘thin skull rule’). Because they were pre-existing, they are precluded from
being considered as intervening between the conduct and the consequence.

In the English case of R v Blaue 1975, the court indicated some approval for extending the thin-skull rule
from physical susceptibilities to emotional or religious characteristics. Van Heerden JA in Mokgeti,
although approving of the decision in Blaue, confined the judgment to a refusal (of medical treatment) on
religious grounds (i.e. it didn’t apply in that case).

7. Medical intervention: In determining whether medical intervention can be a novus

actus, it is important to determine whether the medical conduct was negligent or in some
way improper. In S v Williams the question arose whether withdrawal of a life support
system by a medical practitioner can be regarded as a novus actus. Rabie CJ held that
such medical conduct did not break the causal chain of the initial wound. He drew a
distinction between ‘ending a fruitless attempt to save a life’ (as in Williams) and ‘a
positive act causing death’.

In S v Counter 2003 (SCA), the appellant shot the deceased and the bullet lodged in the deceased’s buttock.
Unbeknownst to doctors, the bullet had actually penetrated the anal canal and caused a virulent septicemia,
which led to pneumonia from which she died two weeks later. The SCA held that the sequence of events
from admission to hospital up until death was not interrupted by any causal factor which changed or
affected the natural order of events. It was thus inconceivable not to hold the appellate liable for an action
which lead directly to his wife’s death.

In S v Tembani 2007 (SCA) the appellant shot his girlfriend twice intending to kill her. She was admitted to
hospital where she died 14 days later. Gross negligence by the doctors was alleged to constitute a novus
actus interveniens. The court however found that (a) the perpetrator of a mortal wound cannot be saved
from liability because others fail to save the victim, and (b) due to the state of healthcare in South Africa,
unreliable healthcare cannot be considered abnormal.

8. Encouragement to commit suicide: Where X encourages Y to commit suicide (suicide,

in itself is not punishable) or X provides Y with the means to commit suicide, the
subsequent voluntary conduct of Y in committing suicide does not necessarily count as a
novus actus and break the causal chain set in motion by X (S v Grotjohn). If Y’s suicide
 was foreseen, X may be guilty of murder. If it was merely reasonably foreseeable, then he
will be guilty of culpable homicide.

2. The Adequate Cause Test – consequence is ‘normal in the light of human experience’

An act is an ‘adequate 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 consequence (i.e. it is
‘normal in the light of human experience’). The test for determining whether a novus actus is
present is the converse (i.e. what is ‘abnormal in the light of human experience’). However in
Daniels Trengove JA and Nicholas AJA conclude that the second accused’s conduct was a novus
actus, whereas Jansen JA apparently applied both the adequate cause and novus actus tests and
reached the opposite finding.

Jansen JA examined the first accused’s conduct in isolation from the second, and did not see it as
important that the wounds inflicted by the first accused and by the second did not combine
physiologically to bring about the deceased’s death. Nicholas AJA and Trengove AJA give
weight to the fact that there is no evidence that the back wounds and head wound have combined
physiologically to bring about death (i.e. the conduct of the second appellant must be seen as a
novus actus). This approach is to be preferred. Even though he would have inevitably died from
the back wounds, the subsequent shot caused instantaneous death. The first appellant’s conduct
therefore, while a factual cause, was not a legal cause and Trengove JA was right to find him
guilty only of attempted murder. There wasn’t sufficient evidence, as Nicholas JA claimed there
was, to show common purpose.

3. The Single Test or Smorgasbord – ‘sufficiently close connection’

In Mokgethi the court formulated a broad test. The test is based on the enquiry as to whether
there was a sufficiently close connection between the accused’s conduct and the unlawful
consequence. The emphasised that the various tests proposed thus far are merely factors to be
weighed in the balance in determining whether there was a sufficiently close connection between
the accused’s conduct and the unlawful consequence.

In Mokgethi 1990 (A) the court held that the initial injury was the factual but not legal cause of
death. The medical intervention changed the wound from a mortal one, to a non-mortal wound
and the immediate cause of death were the pressure sores and septicaemia (i.e. the victim’s own
negligence). The AD labelled this conduct objectively unreasonable, and unreasonable in light
of personal circumstances. The court did not specifically apply either the novus actus or adequate
cause tests (and the conclusion is compatible with both), but rather stressed the need for a flexible
approach, taking note of reasonableness, fairness and justice. All the tests are ultimately doing the
same thing – looking for a sufficiently close causal connection.

Psychological Causation
In S v Maxaba, Viljoen JA stated that the prosecution must prove that the conduct of the accused
contributed ‘physically or psychologically’ to the consequence. Psychological causation could
take place where a person is hypnotized, or where one is encouraged to commit suicide
(Grotjohn).

Fault and Causation

Fault must not be confused with legal causation. The case of S v Van As highlights the difference.
The accused was charged with culpable homicide. He had smacked a fatty (described in the
judgment as a ‘keg on legs’) on the cheek. The fatty fell over, hit his head on the cement floor and
died. The AD held that death was not reasonably foreseeable, and that the accused was thus not
guilty of negligence. Surely, however, the accused must be said to have been both the legal and
factual cause of the fatty’s death. However, an accused may make a mistake with regards to the
causal sequence. The relevance of this to criminal liability is dealt with later. See S v Goosen.