7.

FAULT

A. INTRODUCTION

The Concept of Fault – No liability without fault

Fault is an element of every crime. It takes the form of either intention (dolus) or negligence
(culpa). All common-law crimes require intention except for culpable homicide and contempt of
court committed by an editor. Statutory crimes require either intention or negligence.

Fault and Unlawfulness

The requirement of fault as an element of liability means that fault must exist in respect of each
and every element of the crime with which the accused has been charged. For example: murder is
the unlawful intentional killing of a human being. Thus, one is only guilty if one knows or
foresees the possibility that what they have done is unlawfully to kill a human being.

Fault and Capacity

Fault and capacity both address the mental qualities of an accused. Nevertheless, they must be
kept distinct. Capacity is a prior enquiry into the ability to appreciate wrongfulness and act in
accordance with that appreciation; this takes place prior to determining whether the accused in
fact acted voluntarily and with mens rea.

B. INTENTION – ‘INTENTIONAL AND KNOWINGLY UNLAWFUL’

INTRODUCTION

An accused is at fault when he (a) intentionally commits unlawful conduct (b) knowing it to be
unlawful. The concept has gradually been extended to cover not just deliberate but also foreseen
conduct (i.e. dolus eventualis).

Forms of Intention

Intention takes various forms: dolus directus, dolus indirectus and dolus eventualis. These three
forms may be general (dolus indeterminatus)
In R v Keewelrump: A property owner intended to burn his stock in a building in order to get insurance on
the stock. But in fact the building itself burned down and he was convicted of arson. With regards to
burning of stock (malicious damage to property) he had dolus directus and thus was guilty of malicious
damage to property. But he was also found guilty of arson, because he had dolus indirectus, in other words,
he saw the consequence of arson as certain or substantially certain.
←
← Burchell posits the question as to the situation where someone had been in the building
and had died. Whether the arsonist will have dolus eventualis with regards to that person depends
on an evaluation of the facts, where the individual lacks intention, but foresees the possibility of
the consequence occurring and nevertheless proceeds with his actions, there will be dolus
eventualis.

1. Dolus directus
This implies that the accused meant to perpetrate the prohibited conduct or bring about a
consequence.

2. Dolus indirectus
This exists when, although the unlawful conduct was not the accused’s aim and object, he saw the
unlawful conduct or consequence as certain, or substantially certain, or virtually certain (i.e. R v
Keewelrump).

3. Dolus Eventualis (subjective foresight of the possibility of the unlawful consequence)

This form of intention exists where the accused does not ‘mean’ to bring about the circumstance
or consequence, but foresees the possibility of that consequence, and proceeds with his conduct
anyway. Sometimes called ‘legal intention’

In R v Jolly, Jolly had unlawfully and intentionally derailed a train and was convicted of assualt with
intention to murder. This was at time where trains were much slower and derailing a train would prove less
fatal. No one was seriously injured. Jolly raised the defence that he lacked intention to injure anyone and he
had even picked a spot where the train was travelling slowly uphill. The court held that Jolly had dolus
eventualis as he in fact had contemplated risk to life and nevertheless proceeded with his plan.

4. Dolus Indeterminatus
Where one throws a bomb into a crowd, the fact that he has no particular intention to kill a
particular individual does not mean he lacks intention. He has what is called, ‘general’ intention.

Intention and Motive

The general rule is that a person’s motives, whether good or bad, are irrelevant to criminal intent.
Evidence of motive is admissible however, and may prove important in implicating the accused
in the commission of the crime or establishing intention.

S v Haartman: Where his father was suffering from cancer, Haartman injected a poison into his
drip so that his death may be hastened without further suffering. He thus had a very good motive
but nevertheless had an intention to kill his father. The court imposed a suspended sentence. And
he was struck off the medical role even though ultimately he did not go to jail. He was still
convicted for the murder of his father.
Dolus Eventualis – FPCR (‘Fat People Can’t Run’)

Definition

Dolus eventualis exists where the accused (a) foresees the (b) possibility that a prohibited
consequence might occur, in (c) substantially the same manner that it does, or the prohibited
circumstance might exist and (d) proceeds recklessly nonetheless.
Therefore the requirements of dolus eventualis are:
a) Foresight
b) Possibility
c) Correlation between foreseen and actual manner of consequence occurring
d) Recklessness

Foresight – ‘actual subjective foresight’ (“Fat”)

Foresight is evaluated in terms of a subjective test (i.e. only considers the state of mind of the
accused) to determine whether the accused himself actually foresaw the consequences of his act.

The subjective test may be satisfied by inferential reasoning (i.e. in particular circumstances the accused
‘ought to’ and thus by inference, ‘did foresee’ the consequences. The courts have stressed that the inference
must be the only one that can reasonably be drawn from the proven facts.

Possibility (“People”)

It is clear that the foresight of the mere possibility of a consequence is sufficient (i.e. it needn’t
be probable) and thus a ‘remote’ possibility will suffice. If the accused foresaw that there was a
possibility that the consequences or circumstances could result (and reconciled himself to this
possibility), he had intention in the form of dolus eventualis.

S v Ngubani: the court held that if the agent persists in his conduct, despite seeing the real or remote
possibility of unlawful consequence, the inference can be drawn that he reconciled himself with that
consequence, that he was reckless of that consequence. The extent of the risk is only relevant in that it can
help the court to draw an inference that he accepts the risk in to the bargain (i.e. the ‘remoteness inquiry’ is
relevant to whether the accused ‘accepted the risk’ or recklessness rather than to foresight of a possibility).

Correlation between foreseen and actual manner of consequence – “Can’t”

In S v Goosen 1989 (A), the accused had participated in a robbery under the belief that the victim would not
be harmed. The victim was shot and killed. The accused had foreseen the possibility that one of his fellow
robbers might intentionally shoot and kill the deceased. In fact what happened was that one fellow robber
accidentally and involuntarily pulled the trigger of his gun, unintentionally causing the death of the victim.
Goosen was convicted of murder in the court a qou. On appeal, the court held that the result must have
been foreseen as occurring in materially the same way as it actually occurs. Goosen’s foresight differed
materially from the way the events actually occurred and thus he lacked dolus eventualis. The events
occurring as they did were however reasonably forseeable and thus he was guilty of culpable homicide.
The Goosen rule is thus that ‘intention’ requires a substantial correlation between the foreseen
manner and the actual manner in which the event occurred. It should be noted that the Goosen
rule (a) only applies to cases of dolus eventualis and (b) it does not require foresight of the
precise way in which the consequence will occur (i.e. only be substantially correlated).

Accepting the possibility into the bargain (recklessness) – “Run”

The accused’s state of mind in regard to that possibility must be one of consenting (i.e. ‘taking it
into the bargain’). Burchell is highly critical of this element regarding it as at best a confusing
and, at worst, irrelevant.

An Assesment of Dolus Eventualis and the Concept of Conscious Negligence

Foresight: Real or Remote Possibility?

According to the late Burchell, where the accused foresaw the possibility of a consequence or the
existence of a circumstance as something less than a real possibility, for instance, a remote
possibility, conscious negligence rather than intention would be in issue.

Conscious Negligence

Conscious negligence exists where the accused foresees only a remote possibility of a
consequence resulting and fails to take the steps that reasonable person would have taken to guard
against this possibility.

In R v Hedley 1958 (N) the accused was found guilty of culpable homicide where he shot at a cormorant
near the edge of a dam. The bullet ricocheted off the surface of the water, near some huts which the
accused admitted seeing before he fired, and killed a woman. The court held that the accused had foreseen
a remote possibility of (rather grave) harm. The court held that Hedley foresaw the remote possibility that
he might kill someone when he fired the shot. Since a reasonable person would not have fired the shot in
these circumstances, he was consciously negligent in doing so.

KNOWLEDGE OF UNLAWFULNESS

S v De Blom

In S v De Blom, Mrs De Blom was charged with taking money and jewellery out of the country. This was
contrary to the strict exchange control regulations in place at the time. In defence, Mrs De Blom simply
argued that she lacked knowledge of unlawfulness (required to form intent). Previously, ignorance of the
law was no excuse. The court however held that this view was out of date and that ‘knowledge of
unlawfulness’ is part of intention (i.e. there is no presumption that everyone knows the law). The court
however added the proviso that when dealing with negligence, the accused will be expected to know the
law when he operates in a particular sphere. Despite this development, the court found that in relation to the
money, Mrs De Blom did possess intention (including knowledge of wrongfulness) and was thus guilty.

Ignorance and Mistake, and the Presumption against Strict Liability

Ignorance here refers to absence of all knowledge (i.e. not simply a mistake as to the practical
application of rules). De Blom doesn’t make a distinction between mistake and complete
ignorance. The court also held that where the legislature does not provide a ‘fault word’ in the
definition of an offence there is a presumption that the legislature did not wish to create no fault
liability.

Criticism
Whiting argues
1. that the case went too far because it would be too difficult for the prosecution to disprove
ignorance of the law, and
2. that the reasonableness of the lack of knowledge of unlawfulness should be considered in
dolus as well as culpa

Burchell’s response to this is

a. there needs to be a link between moral blameworthiness and the law (i.e. a person is not
morally blameworthy if they do not have knowledge of the law)
b. also the conviction on the money count was based on inferential reasoning (i.e. the court
inferred that she did in fact know)

Regardless of any of this, no case has departed from De Blom, and it is very much a part of our
law.

ABERRATIO ICTUS (GOING ASTRAY OF THE BLOW)

The classic aberratio ictus situation: Where A intends to kill B and fires a gun at B but the
bullet goes astray and kills C (assume he would be guilty of attempted murder of B).

In applying the aberratio ictus rule in the past, courts would have reasoned as follows: A
attempted to kill B, so he would be guilty of attempted murder in regard to B. Murder is defined
as the intentional unlawful killing of a human being. So there has been murder. The intent in
killing B was essentially transferred to C. This was an automatic conclusion of the courts.
Because there was intention with regard to B, and another person was killed, there was intention
with regard to that other person.

Ultimately the courts held that the AI rule was not a part of our law because our system is fault-
based (i.e. mens rea must be shown with regard to the ultimate victim at least in the form of
dolus eventualis). The modern approach holds that there is no automatic intent in the form of
dolus eventualis in regard to the killing of C. This raises the question as to whether there is
negligence in regard to the killing of C. If there’s no negligence, then we can acquit A for C’s
death. That’s the main difference between the modern mens rea approach and the old aberratio
ictus approach, under which there was no chance of acquittal.

OTHER DEFENCES EXCLUDING INTENTION

Bear in mind that various defences that exclude capacity could be valid defences excluding
intention if they don’t succeed in excluding capacity. We’ve looked at defences excluding
unlawfulness and defences excluding capacity, and now looking at defences excluding intention
such as mistake and ignorance. But where there is not sufficient evidence to show that the
accused lacked capacity, then there is still the possibility of seeing those defences in the light of
defences excluding intention. An example is provocation. In most cases of provocation, the
violence that is used by the person who responded to provocation would usually be intentional.
But in the context of consequences such as death, it is possible that you did not intend the
consequence of death. So just remember that in a sense the accused has three bites at the cherry.
First, defences excluding unlawfulness; if they don’t succeed then defences excluding capacity; if
they don’t succeed then there might be a defence excluding intention. This could be the case in
intoxication, youthfulness, provocation and even insanity. And then of course remember that De
Blom gives rise to the possibility of a number putative defence which we’ve examined in detail,
such as putative private defence.

NEGLIGENCE

Negligence is sufficient in the common law crimes of culpable homicide and contempt of court
by the editor of a newspaper, and in certain statutory offences. Negligence is the term used to
indicate that the conduct of a person has not conformed to a prescribed standard – that of a
reasonable person.

NEGLIGENCE DISTINGUISHED FROM INTENTION

Intention is conceptually different from negligence. The most important aspect of this distinction
is the fact that intention involves a subjective inquiry into the accused’s state of mind. The test of
negligence is objective (i.e. what a reasonable person would have foreseen and done in the
circumstances).

THE CONCEPT OF NEGLIGENCE IN SOUTH AFRICAN CRIMINAL LAW

In South African law – there does not need to be a finding of gross negligence. A deviation by
1% of the reasonable person is sufficient to constitute negligence. This is probably beneficial for
our jurisprudence, as it’s very difficult to determine the difference between ordinary negligence
and gross negligence.

The three-fold test for negligence is:

i) Would a reasonable person (in the accused’s position) have;
a. foreseen the reasonable possibility of the occurrence of the consequence
(including its unlawfulness), and
b. taken steps to guard against that possibility?
ii) Did the accused fail to take these steps?

Reasonable Foreseeability

Unlike in delict (where the general nature and manner of harm must be reasonably forseeable),
criminal negligence required the ‘unlawful consequence’ to be foreseeable.

Duty to take steps

This consideration essentially turns on the same factors as the delict test for the duty to take steps
(i.e. (a) the risk of harm occurring and (b) the gravity of harm should it occur are weighed against
(c) the cost or difficulty of taking steps).

The Reasonable Person and Individual Characteristics

The extent to which individual characteristics are and should be taken account of in the concept
of the reasonable person seems to me a very, very likely essay question. Gavin Hood’s film A
Reasonable Man is useful for thinking about the kinds of questions that would arise in such an
essay. For this reason I’ve included Burchell’s run down of the film, including the rhetorical,
open-ended questions that he posed.

Case Law on the Concept of the Reasonable Person

The South African concept of the ‘reasonable person’ has become “somewhat individualised”.

The courts have emphasised an objective test, but have been sensitive to the reality of a
heterogeneous and multicultural society, and the potential injustice that can occur from the rigid
application of an objective and Eurocentric standard. When dealing with statutory offences judges
have the option of finding that intention is the fault standard. But in Mbombela and Ngema this
option wasn’t available because they were dealing with whether there was liability for the
common-law crime of culpable homicide.

In S v Mbombela, the accused was convicted of the murder of a 9-year old child whom he mistakenly
thought to be a tokoloshe. On appeal, it was argued that a test of reasonableness which ignored superstition
or the intelligence of the person accused was unjust. The AD held that although his belief was
unreasonable, it was based on a bona fide mistake of fact, and so the killing fell within the definition of
culpable homicide rather than murder.

Burchell’s three options for subjectivising the reasonable person

1. Employ a completely subjective test of negligence (however this conflates intention

and negligence and is highly unlikely to be approved).
2. Including subjective factors into the objective test for negligence (i.e. endowing the
reasonable person with particular individual qualities and beliefs, using the
Constitution to determine which subjective factors may be considered).
3. Adding an objective element to the subjective test for capacity.

In S v Ngema, the accused killed a young child thinking it was a “Tokoloshe”. The court accepted the
accused’s version of events as they were ‘reasonably possibly’. The court dismissed the proposed defence
of involuntariness thus finding that the accused acted voluntarily. In relation to intention, the court held
that the accused clearly did not have the subjective intention to kill a human being (i.e. genuine bona fide
mistake). As to the question of negligence (i.e. culpable homicide), the court emphasised the difficulty of
applying the objective ‘reasonable man’ test in a heterogeneous society. The court held that a balance must
be found between the objectivity and subjectivity in the negligence test, and thus must test negligence on
the basis of the ‘reasonable person’ of the same background, educational level, culture, sex and race of the
accused. The accused was however found to have departed from this standard and thus acted negligently,
resulting in a conviction for culpable homicide.

In S v Du Toit, the accused had contravened a statute restricting the possession of petrol although he
claimed to be unaware of the statutory provision. The court reiterated the presumption that fault is required
for criminal liability. The court provided several factors to help to determine what kind of fault is required,
namely (a) the object and purpose and (b) wording of the statute, and (c) the severity of the penalty, and
found that in this case, these factors illustrated that negligence was sufficient for liability (i.e. De Blom
proviso applies which expects people to know the law in their particular field of operation). The court thus
held that any motorist is expected to know the law in this ‘sphere of activity’ and Du Toit was thus
negligent. This case has been criticised on the grounds that it impermissibly widens the ‘sphere of activity’.

In ABI v Durban City Council, the accused was convicted of contravention of municipal by-laws on the
basis of strict liability (as it had sold a bottle with a bee inside). On appeal, the majority adopted the fault-
based liability approach, and decided that negligence was the fault criteria for a contravention of these
public health by-laws. The minority however argued that the legislature had intended to protect the health
of the public and thus impose strict liability.