1.

UNLAWFUL CONDUCT

A. VOLUNTARY HUMAN CONDUCT

Whether a juristic person can be held to be criminally liable is dealt with in S 332 of The
Criminal Procedure Act. It was originally doubted, but modern society and rife criminal activity
in companies has changed that view.

The Voluntariness Element

Conduct must be voluntary, in that it is controlled by the accused’s conscious will. Where for
some reason or another, a person is deprived of the freedom of his will, his actions are
involuntary and he cannot be held criminally liable for them. Even an omission must be
voluntary in the sense of being controlled by the accused’s conscious will. Conduct is considered
to be involuntary if it takes the form of automatism. This covers conduct that occurs during
sleep, black-out, dissociation, hypnosis, or is the result of arteriosclerosis, concussion, epilepsy,
heavy intoxication, provocation or severe emotional stress. For authority: voluntary conduct was
described in S v Chretien as “controlled by the will”.

Pathological and Non-pathological Incapacity

There exists a presumption of sanity which places the burden of proof on the accused (i.e. a
somewhat questionable infringement of the presumption of innocence) when he raises the defence
of ‘pathological incapacity’. This burden does not apply to automatism and incapacity raised
under the defence of ‘non-pathological incapacity’. At most, the accused bears an evidential
burden of laying a foundation for the defence. In these cases a verdict of “not guilty” is an
unqualified acquittal.

An act is also involuntary if it occurs as a result of the application of superior force on the body
of a person. This is either in the form of ‘Absolute force’ (vis absoluta): Where Y forces X’s fist
into Z’s face or a hurricane X through Y’s window. There is no conduct on X’s part, or ‘Relative
force’ (vis compulsiva): Y threatens X that if he doesn’t kill Z, then Y will kill his family. His
conduct cannot be said to be involuntary, but in some systems of law might escape liability
because of compelling force.1

Liability based on prior human conduct (actio libera in causa)

However, even if an accused acts in a state of automatism, he may be criminally liable if there
was (a) prior voluntary conduct combined with (b) the requisite antecedent fault, which is (c)
causally linked to the unlawful consequence. It has been accepted by the SA courts that a person
who voluntarily and deliberately gets drunk in order to commit a crime is guilty of committing

1
Burchell says that although this conduct is voluntary, free will is sufficiently impaired that conduct could
be excused rather than justified.
the crime, even though at the time of committing the crime he is blind drunk and acts
involuntarily.

In S v Dhlamini 1955 (T), the accused had only half woken up out of a nightmare, was acting
mechanically without intention, volition or motive. He then stabbed the deceased 3 times with a knife.
The accused was held not guilty of murder or culpable homicide.

In R v Mkhize 1959 (N), the accused was an epileptic, and was charged with the murder of his sister on
whom he inflicted stab wounds with a knife he was using to cut meat. There was no explicable motive for
the stabbing. The accused’s evidence was accepted, and established amnesia for a period. The accused was
found to have suffered an attack of epilepsy and stabbed his sister in an unconscious state. It was held that
muscular activity during unconsciousness cannot be said to be voluntary, and he should be acquitted.

In R v Schoonwinkel 1953 (C), the driver of a car was charged with culpable homicide as the result of a
collision with another car in which the passenger was killed. The defence showed that at the time, he was
suffering from an epileptic fit, and his mind was blank. He had only ever had two minor attacks before and
couldn’t be expected to realise the dangerous consequences of driving. In this way Steyn J distinguishes the
case from Victor.

In R v Victor 1943 (TPD), the accused was charged with negligent or reckless driving. He was driving on a
public road and sustained an epileptic seizure, lost control of the vehicle and collided with a pedestrian and
another vehicle. He was convicted in the magistrates court. The court found that because he had had
regular attacks since the age of 14, and had had an attack that morning, he drove recklessly and
negligently by because he was aware that his condition made him a hazard on the road. You can’t claim
involuntarism if the involuntary convulsion is something you had reason to anticipate.

B. AN ACT OF OMISSION OR COMMISSION

Act (Positive Conduct)

To constitute a punishable crime the manifestation of culpable mind must take the form of
conduct that matches the description in the crime’s definition. Therefore, murder is defined as the
killing of a human being, and the conduct of a human being must bring about the death of a
human being – anything less is not murder. Murder is an example of a consequence crime, but
not all crimes are defined in terms of consequences. It is a crime to drive under the influence of
intoxicating liquor regardless of any consequence. The only requirement is that the accused’s
bodily movements amount to driving a vehicle. This is a crime of circumstance.

Omission (Failure to Act)

As a general rule, conduct must include doing something (an act of commission) or not doing
something (an omission). What we are concerned with here is not the kinds of omissions involved
in negligence (i.e. all negligence involves an omission or failure to achieve a particular standard)
we are concerned here with ‘mere omission’ or passive inaction.
 The General Rule for Omissions

Lawfulness
The central question whenever it is argued that liability should be based on an omission is
whether there was a legal duty to act in the circumstances. The issue in our law is one of
lawfulness, not fault. In our law, unlike other jurisdictions, there is no general duty to intervene.
The rationale behind a general rule of no liability to act is based on maximizing individual liberty.

The general rule in South Africa is expressed in the leading delict case of Minister van Polisie v Ewels. It
states that a person is not under a legal duty to protect another from harm, even though he or she can
easily and ought morally to do so. However, there are exceptions.

There is judicial recognition – on the basis of the legal convictions of the community – that
exceptional legal duties to act arise in the following circumstances:

- Where there is prior conduct on the part of the accused creating a potentially dangerous
situation a legal duty is imposed upon him to act (the omissio per commissionem rule).
- Where the accused is in control of a dangerous thing or animal, imposing on him a
legal duty to prevent it from doing harm.
- Where the accused is in a protective relationship with the person harmed, imposing on
him a duty to prevent harm.
- Where the accused occupies a public or quasi-public office vis a vis the victim.
- Where statute or contract require a legal duty to act.

This is not a closed list, but in Carmichele the Constitutional Court emphasized that any
development must be in accordance with constitutional norms and values. Burchell is concerned
that if the legal convictions of the community are used in an unrestrained way to create new
duties, the principle of legality may come under threat.

Exceptions to the General Rule (or, when a duty to act does exist)

1. Prior Conduct
Where a person creates a dangerous situation through their own prior conduct he will have a duty
to act. Strictly speaking this is not so much an exception to the rule, but rather a mixture of
commission and omission.

In the English case of R v Miller 1983, while squatting in someone else’s house, the accused lit a cigarette,
and lay down on the mattress in one of the rooms. He fell asleep and dropped the cigarette on the mattress.
He woke up to a smoldering mattress and did nothing to put out the fire, moved to another room and went
to sleep. The house burnt down. He was convicted of arson because his prior conduct resulted in a
potentially dangerous situation of which he was aware, and he took no steps to prevent it.

2. Control of a potentially dangerous thing or animal

Where a person has assumed control of a potentially dangerous thing or animal, which may cause
harm unless precautions are taken, he is under a legal duty to act in protection of third parties.

In S v Fernandez, the accused failed to prevent a baboon from escaping from a cage he had been repairing.
The baboon killed a young child and the accused was convicted of culpable homicide. The duty rested on
the principle of control.

3. Special or protective relationship

A person who occupies a special or protective relationship towards another may be under a legal
duty to take steps to protect that person from harm. For example, a policeman is under a duty to
prevent a person from being assaulted by another.

The legal perception of the police as a protector received a setback in Minister of Law and Order v Kadir
1995 (A). The AD took an unduly restrictive view of the duties of the police, holding that the police are
not under a duty to assist an injured person at the scene of a motor accident by helping him to record the
identity of the driver of the vehicle which may well have caused the accident. According to the AD, the
duties of the police were first and foremost to maintain law and order, prevent, detect and investigate crime
– and this did not extend to providing assistance in obtaining evidence for a civil claim.

In Minister van Polisie v Ewels 1975 (A), Ewels was assaulted by an off-duty police sergeant, while in a
police station and in the presence of several other on-duty members of the police. The central issue to
decide was whether the policemen who stood by were under a legal duty to intervene. The court accepted
the premise that there is no general duty to prevent harm to another, however where there is a legal duty,
and a person fails to comply with that duty, there is an unlawful omission which can give rise to a claim for
damages. In determining unlawfulness we are concerned with whether there was a legal duty to act
reasonably. A policeman is not only a deterrent and a detective but also a protector. In this case it would
have been easy for the policemen to jointly stop the attack. The position of the policemen vis-à-vis Ewels
would have been the same had the assailant not been a policeman. The duty to assist the plaintiff is a legal
duty, and the defendant is thus liable.

Although the Kadir judgment could be seen as a temporary setback for the principle that the state
must protect its citizens, Carmichele v Minister of Safety and Security 2001 (CC) has underscored
that the police owe a duty, derived from the Constitution to protect the public in general, and
women and children in particular, from violent crime. The Constitutional implications of this
were to provide for a new category of liability for omissions – the legal duty of the State to
protect persons from violent crime and other human rights infringement.

Where X naturally stands in a protective relationship towards Y, X is under a duty to

prevent Y from suffering harm, particularly death. For example, the mother of a child is
under a legal duty to prevent her child from assault.

4. Public office or quasi-public office

The incumbent of such office may be under a legal duty to care for someone in his or her charge.
For instance, a policeman is under a legal duty to prevent a person from being assaulted or to
obtain medical attention for someone under his charge.
Does the failure of a policeman to report a crime which he has seen being committed render him
an accessory after the fact?
In S v Madlala it was pointed out that a policeman’s failure to report the commission of a crime does not
necessarily indicate the intention to help the criminal evade justice, which would be the fault element
necessary for that crime.

The nature of the accused’s occupation is a fundamental issue in deciding liability for omissions,
particularly in cases of State liability.

5. Statute
Legislation creates a number of positive duties to act or speak. Where a statute imposes a positive
duty to act, the defence of impossibility may be available.

6. Contract or other undertaking

A legal duty may be assumed by agreement, express or implied. A doctor who undertakes to
operate and as a result of his failure to perform his duty the patient dies, would be responsible for
the death. A doctor is also legally obliged to inform a patient of the material risks involved in
treatment or surgery (Castell v De Greef 1993 (C))

7. The State’s duty to protect persons from violent crime

In all the above situations, the legal convictions of the community, including the rights and values
in the Constitution, form the basis of the liability for failing to act (Carmichele and Ewels). It is
encouraging to see the trend in the CC and the SCA to place a duty on the police (acting as the
state) to protect persons from violent crime. Thus far these have been delictual cases. A central
issue is whether breach of this duty by the state could lead not only to delictual liability, but to
criminal liability.

In Carmichele v Minister 2001 (CC), Carmichele brought a claim in delict against the Minister, claiming
the State was liable for the alleged wrongful failure of the investigating officer, and was accompanied by
negligence. The trial court and SCA said there was no legal duty of protection on the part of the
investigating officer or prosecutor. On appeal to the CC, the court held otherwise and sent the case back to
the High Court which then ruled in favour of Carmichele. The case then returned to the SCA where Harms
JA said that the breach of a public law duty based on Constitutional principles, translated into the breach of
a private law duty, giving rise to State delictual liability. This judgment has set the tone for the civil
liability of the State for failing to protect persons from violent crime and human rights violations.

In Minister of Safety and Security v Hamilton Van Heerden AJA held that a police official is under a legal
duty to assess properly the suitability and fitness of an applicant for a firearm. Failure to do so can lead to
liability of the State for damages resulting from shooting by an unfit person to whom a firearm license has
been issued.

In Minister v Van Duivenboden, the court held that the State has a positive Constitutional duty to act in
protection of fundamental rights. The existence of this duty is to be found in the concept of
“Accountability” in the Constitution. This norm of accountability does not always translate into a legal duty
to act, when there are countervailing policy considerations of effective government.
In Minister of Safety and Security v Van Eeden 2003 (SCA), a 19-year-old woman was raped by a known
dangerous criminal who had escaped from police custody. She claimed that the state owed her a duty to
prevent his escape. The state conceded negligence, causation and vicarious liability, the only issue was
whether the state had perpetrated an unlawful omission. The court held that freedom from violence is
protected in the Constitution and this freedom requires the state to protect individuals, especially women,
from violence. The recognition of a legal duty on the police to exercise control over a known prisoner
wouldn’t require additional resources or disrupt the functioning of Government. The police acted
unlawfully and are civilly liable to the victim.

The Possibility of Criminal Liability

All four judgments: Carmichele, Van Duivenboden, Van Eeden and Hamilton are cases of civil
liability of the State for failing to act. They all contain limiting policy factors to ensure that the
efficiency of government and policing is not undermined by positive duties. In Van Eeden it
would be impossible to hold the state official guilty of rape by omission because of the definition
of rape. He could be liable as an accomplice however. In Van Duiwenboden and Hamilton it is
theoretically possible for the state official to be guilty of assault but at least dolus eventualis
would be required. In cases where death arises, culpable homicide by omission for negligently
failing to protect someone is a possibility, where compliance with the duty would have been
reasonable. In cases where death doesn’t arise, judicious use of dolus eventualis as a lesser
variant of intention could bring State omissions into the criminal realm. The principles of
liability for omissions are the same in delictual and criminal liability. Criminal and civil cases are
used interchangeably in determining issues of legal duties to act. There are different policy
considerations involved, but criminal liability in special circumstances is not impossible.

Fault

Although the inquiry into unlawfulness and fault can theoretically be separated, the presence of
fault, especially subjective intention or knowledge of the harm and risk of harm involved in not
acting, is a major factor in determining potential liability for an omission.

State of Affairs

A mere condition or situation is sometimes punishable by statute – for example, being drunk in a
public place or being in possession of dagga. Such a state of affairs does not involve an act of
commission or omission. Burchell says we must take the view that the unlawful conduct element
(actus reus) must be interpreted to include a failure to terminate the state of affairs, or prior
conduct which resulted in the situation.