Case Law

UNLAWFUL CONDUCT (ACTUS REUS)
CAUSATION CASES:
MOKGETHI 1990 (AD)

Pertains to legal causation.
Importance of the case:

The case explains the broadness of factual causation and;
Smorgasbord approach:
This approach comes from the case of Mokgheti as here, the court did not favour any one specific test for legal causation but rather, took into
account any one or more of the following factors: absence of a novus actus interveniens, direct cause, adequate cause, proximate cause or
foreseeability. The approach used by the courts here dictates that one uses the test that best suites the factual circumstances of the relevant case
IE: ‘no one criterion held the answer to every factual complex’ as one or more of these formulations may be relevant to the inquiry into legal
causation.
Formulation of ‘sufficiently close connection’ test:

The court in Mokgheti was reluctant to lay down any one single test to determine legal causation. Rather, Van Heerden J formulated a general
overarching test known as the ‘close connection test’ which states: was there a sufficiently close connection between the accused’s conduct and
the unlawful consequence? The court held that when determining whether or not there was a sufficiently close connection the smorgasbord
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approach can be utilized IE: to use any of the tests for legal causation that best suit the relevant facts.
Exception in terms of medical intervention constituting a novus actus:

The court held that although the initial injury was the factual cause of the victim’s death (a gunshot wound) it was held not to be the legal cause.
This is because as a result of successful medical intervention, the wound that the victim had received in the robbery was no longer fatal and the
immediate cause of death was the pressure sores and resultant septicemia which was attributable to the victim’s own conduct of failing to
comply with medical instructions.
Facts:
 The victim was shot in the midst of a bank robbery which resulted in him becoming a paraplegic.
 After receiving medical treatment, the victim recovered enough to use a wheelchair and go back to work.
 After several months, the victim was admitted back to hospital due to bed sores becoming infected, which led to septicemia.
 The bed sores were as a result of accused not shifting his position enough (which he was advised to do).
 The accused died 6 months after the initial injury.
S V TEMBANI 2007 (SCA)

Pertains to legal causation.

In South African law, medical intervention is not said to constitute a novus actus interveniens (test used to establish legal causation) and this
was established in Tembani.
Facts:
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 The accused shot his girlfriend twice (once in the chest and once in the calf) with the intention of killing her.
 The victim was admitted to hospital and died fourteen days later.
 Medical evidence provided that the accused died of septicaemia which was found in the area’s where she had sustained gunshot wounds.
 The accused was charged and convicted of murder but took the matter on appeal alleging that the hospital staff had been grossly
negligent in their provision of medical care and this gross negligence broke the chain of causation.
Court ruling:
 Even if the medical treatment provided was substandard or negligent, the accused will still be criminally liable as medical intervention
does not constitute a novus actus.
 Medical intervention may only perhaps constitute a novus actus when the victim has significantly recovered from the injuries like in
Mokgheti.
 Obiter: the court made obiter remarks in relation to public policy stating that a reality of medical intervention in SA is that it can be
substandard due to lack of resources and therefore cannot be said to break the chain of causation.
MINISTER OF POLICE V SKOSANA 1977 (AD)

Pertains to factual causation.
Importance of case:
This was a delict case whereby the AD discussed the conditio sine quo non (or factual test) of causation. Corbett JA, who delivered the majority
judgment defined factual causation in terms of whether the negligent act or omission in question caused or materially contributed to… the harm
in question.
Facts:
 Mr Skosana was arrested for drunk driving after he crashed his car and he was detained overnight at a police station.
 In the morning, he complained to the constables on duty that he had stomach pain and requested to be taken to a doctor.
 The constables were slow in taking him to a doctor, and then when the doctor said that they needed to take Skosana to the hospital,
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urgently, the constables were slow in doing so.
 When Skosana did eventually get to hospital he was found to have acute peritonitis and died on the operating table.
 His widow sues the Minister for loss of support, alleging that the constables were negligently dilatory in the two mentioned respects and
that in doing so they were acting in the course and scope of their employment with the defendant.
 She was successful in the court a quo, and the defendant appeals.
Court ruling:
After indicating that no act, condition or omission can be regarded as a cause of the harm in question unless it passes the condictio sine qua non
test, Corbett JA held the following:
 ‘The negligent delay in furnishing the deceased with medical aid and treatment, for which the two policemen in charge of the deceased
who was a detainee were responsible, can only be regarded as having caused or materially contributed to his death if the deceased would
have survived but for the delay. This is the critical question and it necessarily involves a hypothetical inquiry into what would have
happened had the delay not occurred.
 Ultimately, it was proven on a balance of probabilities that the delay of the police officers in getting medical aid/treatment to the
deceased had caused his death.
 Despite Corbett JA’s judgment, Jansen JA and Viljoen AJA dissented on this factual issue and held that causation had not been proven.
 However, both judges in the dissenting judgment approved of the condictio sine quo non test for establishing causation.
S V DANIELS 1983 (AD):


In the Daniels case Jansen, JA (on appeal) emphasized that there can be little doubt that the preliminary enquiry into factual causation be made
in terms of the sine quo non est. Trengrove JA also gave further support to the sine quo non (but for) formulation.
Facts:
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 Accused 1 & Accused 2 attempted to hijack the deceased who, prior to being shot, tried to run away.
 Subsequently, the deceased was shot twice by accused one and then a second time by accused 2 causing him to fall to the ground.
 The victim’s body was found with 3 bullet wounds (1 near the head and 2 in the back).
 Upon medical examination, it was said that the deceased died from brain damage as a result of the bullet in the side of his head.
However, it could not be proven who fired the shot to the deceased’s head.
Court reasoning:
In deciding this case, the court reasoned that the deceased would have died in any event, from the two gunshot wounds that he sustained to the
back, if he had not received medical intervention in approximately 30 minutes after the attack happened. Thus, the court held that the two
gunshot wounds in the back were fatal even though the immediate cause of the victim’s death was the shot incurred to the head. There are three
judgments in this case which are as follows:
Judgment 1: Nicholas J and Botha J

 In this judgment, the court found that both accused persons had a common purpose to kill the deceased.
 The doctrine of common purpose is a common law principle which states that more than one person can be found guilty of the same
offence even if they did not all causally contribute to the unlawful consequence that ensued.
 Thus, according to this doctrine, it does not matter which of the two accused people fired the shot that killed the victim as both of their
conduct is said to have formed part of the common purpose to kill the victim.
 As a result, these judges held that both accused person’s may be tried for the murder of the victim and therefore, there was no need to
decide which of the accused had caused the death of the deceased.
 Lastly, these judges held that causation in relation to each of the accused was not necessary to establish as in a consequence crime such
as a murder, one need not establish causation on the part of the entire group. This is because everyone in the group involved in the
unlawful consequence is regarded as having been involved in what happened, in some way or another and therefore, causation is
imputed to all members of that group.
Example of doctrine of common purpose:
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This example comes from the English law case of R v Swindall. In this case, two cart drivers engaged in a race. One of them ran down and
killed a pedestrian however, it was not known which one of the drivers had driven the cart which killed the victim. However, since they were
encouraging one another in the race, it was irrelevant which of them had actually struck the man and both were held jointly liable. Thus, the
parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention, so that
each member of the group assumes responsibility for the actions of the whole group. When this happens, all that flows from the execution of the
plan makes them liable.
Judgment 2: Jansen, J & Van Vinsen, J

 These judges did not find that there was a common purpose between the deceased persons.
 Rather, they held that the first accused person (who was the first to pull out the gun and shoot at the deceased) was the one who was
guilty of murder.
 This is because the conduct of shooting the deceased twice in the back was both the factual and legal cause of his death according to
expert medical evidence put before the court.
 According to expert evidence, the deceased would have died anyways even if the third shot was not fired.
 Thus, the head wound sustained by the deceased did not constitute a novus actus IE: it did not break the chain of causation for accused 1.
 Moreover, the court held that accused 1 had rendered the deceased a sitting duck for accused two to have taken a clear shot at him.
 Thus, accused 1 was held criminally liable for murder and the court in this judgment utilized the adequate cause test in order to
determine causation, as well as the novus actus interveniens test IE: in light of human experience, would shooting someone twice in the
back result in the unlawful consequence of their death? (adequate cause) and; does shooting someone in the head, after being shot twice
in the back, break the chain of causation? (novus actus test).
 The other three judges in this court criticized Jansen, J and van Vinsen, J’s emphasis on the sitting duck theory stating that it was an
insufficient basis to found legal causation. Moreover, they held that the theory would be more useful in instances whereby the initial
unlawful conduct was not fatal.
Judgment 3: Acting judge Trengrove

 Trengrove, JA held that accused one was not guilty of murder but rather attempted murder.
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 The judge held this on the basis that although accused 1’s conduct of shooting the deceased twice in the back was clearly the factual
cause of his death, he found that the shot to the head was in fact a novus actus which broke the chain of causation.
 This was a minority judgment.
In summary:
This case is not good from a precedent perspective as there was no clear ratio handed down. This is because although 4/5 judges found accused
1 guilty of murder, the way that they went about doing so, differed.
LEE V MINISTER OF CORRECTIONAL SERVICES 2013 (CC):


This is the most recent case to change factual causation (make it more flexible). In this case, the CC importantly, through its ruling, allowed for
the test for factual causation to become more flexible in the sense that previously, great emphasis was placed on proving the exact moment
when the positive act or omission occurred. Lastly, the case approves of the condictio sine quo non test for factual causation.
Facts:
 Dudley Lee was an incarcerated prisoner awaiting trial.
 Whilst incarcerated, Mr. Lee contracted TB.
 The state argued, on behalf of Mr. Lee, that the state through the avenue of correctional services, were the factual cause of Mr. Lee
contracting TB as there was inadequate ventilation in the prison, unsatisfactory medical treatment was being provided and the personnel
were ill-equipped.
 IE: the state argued that steps were not taken to prevent the transmission of TB in prisons.
Court reasoning & ruling:
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 Mr. Lee won his case in the High Court but the matter was then taken on appeal to the SCA. The appeal was then won by the state
(through the avenue of correctional services).
 On appeal to the Con Court, the court held that it was sufficient for the test for factual causation that Mr. Lee had been exposed to
increased risk of infection whilst in prison which he otherwise would not have been exposed to.
 Nkabinde J for the majority of the Con Court held that factual causation had been proven on a balance of probabilities as the factual
conditions of the appellant’s incarceration ‘were a more probable cause of his TB than that which would have been the case had he not
been incarcerated’.
EFF V MINISTER OF SAFETY & SECURITY 2018 (SCA):

Cannot find this judgment and she never once brought it up in class.
CASES ON DEFENCES EXCLUDING UNLAWFULNESS:
S V BOTHA:
Facts:
 The appellant was charged with murder which arose from an incident between her and the deceased at Dros restaurant.
 The deceased died due to complications flowing from a stab wound inflicted by the appellant to her anterior chest wall during the
incident.
 At the time, the deceased’s husband and the appellant were involved in a romantic relationship and the incident concerned the
deceased’s husband.
 The deceased assaulted the appellant, smashed the windscreen of her husband's car, returned to the appellant and attacked her again by
hitting her over the head with an ashtray, grabbing her and pulling her by the hair to the ground.
 While the appellant tried with one hand to remove the deceased's grip on her hair, she grabbed a steak knife from the table and directed a
stabbing movement towards the deceased who was standing behind her.
 The knife penetrated the deceased's chest through the muscles of the anterior chest wall, through the lung and into the brachiocephalic
vein.
 Both her lungs partially collapsed, and she died. The appellant was tried in the regional court, convicted and sentenced to 15 years'
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imprisonment.
Case on appeal:
On appeal in the High Court, the court substituted the conviction of murder with dolus directus with that of dolus eventualis and reduced the
sentence to 12 years imprisonment.
Court reasoning and ruling in the SCA:

The case was then further appealed to the SCA regarding the conviction and sentence.
 On appeal, the SCA held that while the appellant was clearly faced with a situation in which she was being assaulted and had to retaliate
in order to protect herself, she must have foreseen the possibility that by directing the knife towards the deceased’s upper body, she
might injure or kill her.
 The court held further that although she had foreseen that possibility, it was not clear that the appellant had reconciled herself with the
occurrence of death or disregarded the consequences of it occurring.
 There was no evidence that she had deliberately or purposefully aimed a firm thrust at the deceased. On the contrary, the evidence
showed that she had simply turned around while sitting, and directed a stabbing movement towards the deceased's upper body. This
suggested that her conduct was not an impulsive reaction to the attack being inflicted on her.
 The state did not prove all the elements of murder in the form of dolus eventualis, and the conviction fell to be set aside and substituted
with one of culpable homicide. A sentence of three years' imprisonment, subject to the provisions of s 276(1)(i) of the Criminal
Procedure Act 51 of 1977, was appropriate in the circumstances.
Dissenting judgment:
 Schippers JA held that the appellant’s conduct did not begin to meet the test for negligence, namely that a reasonable person in the same
position as the appellant found herself in when she was attacked, would have foreseen that the deceased would die as a result of her
defensive act; that the reasonable person would have taken steps to guard against such a possibility; and that the appellant failed to take
such steps.
 Moreover, it could not be said that her version, that she had to act in split seconds; grabbed something to get the deceased away from
her; and that she did not think that her defensive act would result in the death of the deceased, was not reasonably possibly true.
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 In the circumstances she should have been acquitted
EX PARTE MINISTER VAN JUSTISIE: IN RE S V VAN WYK 1967 (AD):

Pertains to private defence of property and specifically to the requirements for the defence (in order to succeed with such a claim
certain elements need to be proven).

This case addresses the issue of killing in defence of property; discusses factoring in whether or not property is recoverable and most
importantly; formulates the test to determine whether the response to the attack was reasonable by asking whether ‘the means of defending the
property was reasonable, having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, the time
and place of the occurrence’ (whether the defence was reasonable, is requirement 2 for the conditions relating to the defence).
Facts:
 Van Wyk was a shopkeeper whose shop had been broken into a number of times.
 He had exhausted every means possible of deterring the thieves but, to no avail.
 Eventually, he decided to rig up a shotgun that would wound the shoplifters in the leg if the were to enter the shop through a certain
window or go behind the counter.
 He set up a warning sign to ward off burglars on the door of the shop.
 One night a shop-breaker went into the shop and set off the shotgun. He received a fatal blow.
 Van Wyk was then charged with murder but raised the ground of private defence, to which he was discharged.
Legal issue:
As a result of the decision in the court a quo, the Minister of Justice put two questions to the appellate division in terms of section 385 of the
then Criminal Procedure Act.
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 Firstly, could someone rely on private defence if he kills another in protection of his property and;
 Secondly, assuming that the answer of the first question was positive, had the limits of private defence not been exceeded in the
circumstances of the particular case.
Court ruling:
 The appellate division held that the first question put to the court was answered positively by all five judges.
 With regards to the second question three of the five judges held that the limits of private defence had not been exceeded.
 The crux of the judgment was that it was permissible to kill a person in defence of property depending on the circumstances.
 The court provided the following requirements: (a) there must not be a less harmful method of retaining the property, (b) there must be a
warning shot (if this is reasonably practical), (c) the owner of the property must confine himself to the least dangerous course of conduct
which would be efficient according to reasonable expectation and (d) the possessions must not be of a trifling value.
Rejection of the principle of proportionality:

Importantly, in this case, the court also rejected the principle of proportionately in the context of a situation of defence of property, rather than
life or limb. Specifically, the court stated the following:
‘It must be conceded, in my view, that such a balancing is not acceptable as a general yardstick. Generally, as regards private defence, the
interests of the attacker and the victim are seldom similar or equivalent. It is true that a slap cannot without more justify killing, but the
avoidance of a serious non-deadly wound can be balanced against the life of the attacker; and how does one measure the dignity or bodily
integrity of a woman who has been raped against the life of a rapist?
Proportionality will not do as a general basis for private defence. One who invades another’s rights, who definitely ignores the prohibition,
warning and resistance of the right holder so that he can only be prevented by the most extreme measures, can with good reason be seen as the
author of his own misfortune. It is he who is the outlaw, and if he is prepared to risk death in violating another’s rights, why should the
defender, who is unquestionably entitled to protect his rights, be viewed as the one acting unlawfully if he uses deadly force rather than
sacrifice his rights?’.
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ENGELBRECHT (NON PRESCRIBED):
Pertains to private defence specifically with regards to the requirements for the attack & the idea of the attack being imminent.

This case deals with the idea of an attack being “imminent”. The Engelbrecht case extends the idea of imminence to include inevitability.
However, this was not endorsed by the SCA on appeal.
Facts of the case:

 In this case, for several years, Englebrecht’s wife was suffering from continuous physical, psychological and emotional abuse by her
husband.
 On the day in question, the wife had suffered a number of assaults at the hand of her husband.
 When her husband fell asleep, she cuffed his hands and put a plastic bag over his head, consequently suffocating him to death.
 In that moment, when the husband was asleep, the attack on the wife had neither commenced nor was it imminent and so the wife was
arrested and taken to court on the account of murder IE: he was not making advances at her nor was he threatening her (at least this was
the arguments put forth by the state).
Court ruling:
 Due to the severe patterns of abuse endured by the wife, for many years, and the sufficient evidence put before the court of the repetitive
nature of this abuse, the court held that further domestic violence was imminent and inevitable.
 This case is thus important as it introduces the idea of inevitability into the imminence requirement.
 As a result, the court held that the wife could justifiably rely on the action of private defence.
Case on appeal:
 On appeal, further arguments were raised that the wife had made use of the police or the legal system in the past. However, this was not
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found to be 100% true as, in the beginning, she had approached the police, but nothing was done.
 Moreover, sufficient literature regarding domestic violence and literature was put before the court.
 The literature showed that after a period of time it is unrealistic to think that a domestic violence victim has a viable support system to
turn.
 The reason being is that psychological abuse often deprives the victim of friends, family and financial independence.
 Therefore, based on the literature, the court put forth that the wife would not have anyone to tell because her movements were
controlled.
S V TRAINOR (NON-PRESCRIBED):
Case pertains to the defence of necessity
Facts of case:
 The accused was issued with an order which prohibited him from assaulting his wife.
 During a subsequent altercation with his wife, he physically assaulted her (hit her) and was charged with contravention of the Domestic
Violence Act.
 The husband then argued that his wife had first tried to attack him, and his response was merely to ward her off (he hit her once in the
arm and kicked her in the shin).
 Medical evidence showed that he had struck her fairly substantially based on the amount of bruising that she had (bruising also
suggested that there must have been repeated and severe strikes).
 The husband relied on private defence.
Court held:
 The court held that the accused (the husband) had not first tried to leave, restrain his wife (he was physically able to do so) or simply
move her out the way.
 Therefore, he failed to show that his defence was necessary.
R V STEPHEN (NON-PRESCRIBED):
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Deals with the idea of firing a warning shot.
Facts of the case:

 The accused was asleep and heard sounds of an intruder coming through the window.
 The accused then ran and got a butcher’s knife from the kitchen, rushed over to the window and stabbed the intruder (it was dark at the
time).
 The intruder jumped down from the window from which he was climbing, and was found dead, with a stab to the heart.
 The accused intended to stab the intruder in the arm however, because it was dark, he got the intruder in the arm.
Court reasoning:
 The court insisted that a warning should have been given by the homeowner before he fatally stabbed an intruder in his house at night.
 The issuing of a warning or the firing of a warning shot must, however, be examined in light of all the circumstances.
 It may, in certain circumstances, be unreasonable to expect a person faced with an intruder in his or her home to call out a warning or
fire a warning shot.
 By calling out he or she might simply sign his or her own death warrant by identifying his or her own position to the intruder or by
provoking an argued intruder into returning fire.
 Thus, the emergency situation faced by the homeowner might not give time for warnings.
 However, in circumstances where an oral warning or even a warning shot can reasonably be expected of the defender, such a warning
should be given.
S V GOLIATH 1972 (AD):

This case pertains to the defence of necessity/compulsion.

The case is important as the court ultimately held that on a charge of murder, compulsion can constitute a complete defence. Moreover, the
court held that whether an acquittal for such a charge can occur on this basis, it must be determined by the factual circumstances of each case.
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Facts:
 X and Y were walking together one evening when they came upon Z.
 Y accosted Z and asked him first for a cigarette and then for money.
 When Z replied that he had no money, Y stabbed him in the chest with a knife and ordered X (Goliath) to tie him up.
 Being afraid, X demurred whereupon Y threatened that unless X obeyed, he would stab X to death.
 X then bound Z’s arms behind his back and Y proceeded to stab Z 12 more times until he collapsed and died.
 After carrying Z’s body for about half a mile, Y then instructed X to take off Z’s shoes and when he hesitated, Y again threatened to kill
him.
 X and Y were charged with murder with X being an accomplice.
Decision in the trial court:

 In the trial court accused 1 was convicted of murder but Goliath was acquitted on the basis that he had acted under compulsion.
 Following this conviction, the state reserved certain questions of law for the Appellate Division.
Legal issues:
The most pertinent issue before the AD was whether or not the defence of compulsion could ever constitute a defence to murder.
Court ruling:
 Rumff JA observed that the view that killing particularly of an innocent person, cannot be justified by compulsion or necessity is to be
found only in obiter dicta and has its roots in the old English decisions and writers and in the RDL authorities who were influenced by
the ethical and philosophical considerations of their time.
 In other words, Rumff JA held that compulsion can constitute a complete defence to a charge of murder, although he specifically left
open the question of whether compulsion in principle excludes the unlawfulness or the fault element of liability.
 The court held further that acquittal would be justified only if the compulsion was so strong that a reasonable man in the particular
circumstances of the accused could not be expected to have resisted the threat.
 The court held further that this defence is not one that is accepted lightly, however; it will depend on all the surrounding circumstances
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whereby the whole factual complex must be carefully examined and adjudicated upon with the greatest care.
 In Goliath’s case, the decisive factor was that the first accused had the means and the will to carry out his threat to kill Goliath there and
then if Goliath did not comply with his demands. It also weighed heavily with the court that Goliath was neither the instigator nor the
main perpetrator, merely a reluctant accomplice; nor did he profit in any way from the crime.
CHRISTIAN EDUCATION SA V MINISTER OF EDUCATION 2000 (CC):

Pertain to disciplinary chastisement/corporal punishment in schools.

The case confirmed the prohibition of the use of corporal punishment in schools as contained in S10 of the SA Schools Act.
Facts:
 Christian Education, a voluntary association representing 196 independent (private) schools, challenged the validity and scope of S10 of
the SA Schools Act.
 Specifically, the association argued that this section (which banned corporal punishment in schools) infringed their right to religious
freedom.
 The association argued further that parents and guardians of pupils in independent schools have consented to their children being
subjected to corporal punishment.
Legal Issue:
The main issue that required determination involved the application of corporal punished, as it had violated the rights of parents at independent
schools, who in line with their religious convictions, had consented to its use.
Court ruling:
 The court rejected the appellant’s claim, holding that even if it were assumed that S10 limited on such rights and that, as private schools
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operate in the public-domain, it is not unreasonable to expect them to make suitable adaptations to non-discriminatory laws that impact
on their codes of discipline.
 As a result, the court then held that while the relevant parents could no longer authorize teachers to apply corporal punishment in their
name pursuant to their beliefs, they were not being deprived by law of their general right and capacity to bring up their children
according to their Christian beliefs.
 Save for this one aspect, appellant’s schools were not prevented from maintaining their specific Christian ethos. The decision was not
found to be inconsistent with equality, right to religion, and the Court dismissed appeal.
Conclusion:
The ban on corporal punished laid down in S10 of the SA Schools Act applies to all schools in SA, state and private.
S V YG 2018 (GJ):
Case pertains to chastisement.
 In this case, the Gauteng High Court found that the defence of reasonable chastisement is unconstitutional as it infringes on S12 of the
Constitution of SA which protects the freedom and security of the person.
 That judgment went on appeal to the Constitutional Court which had to decide, in essence, whether chastisement is a form of violence as
envisaged in s12(1)(c) of the Constitution which provides that: “Everyone has the right of freedom and security of the person, which
includes the right –
… (c) to be free from all forms of violence from either public or private sources.”
 The Court considered that chastisement involves, by definition, the causing of displeasure, discomfort, fear or hurt and that the actual or
potential hurt that flows from physical chastisement is believed to have a greater effect than other reasonably available methods of
discipline.
 Section 12(1)(c) addresses all forms of violence, and the Constitutional Court found that chastisement (moderate or not) is a form of
violence and infringes on a child’s s12 right.
 The vulnerability of children coupled with the availability of less restrictive means for disciplining children were strong arguments
motivating the Constitutional Court to find that there is no place in our law for the defence of reasonable chastisement.
Where does this leave us practically?
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 Self-evidently, parents can no longer rely on the concept of reasonable chastisement to justify physical discipline of their children.
 There remains the rule in our law of de minimis non curat lex which is that the law is not concerned with trifles which could help parents
escape criminal punishment for physically chastising their children provided that the incident is patently trivial.
 The rule does not necessarily exclude a criminal conviction but could see no sanction applied. Given the risk of criminal punishment and
indeed even a conviction, this is probably not an area of law that parents should test.
 The Constitutional Court acknowledges the practical difficulties which now face law enforcement agencies in dealing with this
development and the Court has suggested that Parliament considers an appropriate framework.
 Unfortunately, even if Parliament is able to craft practically workable legislation, enforcement of the prohibition of reasonable
chastisement falls again on an overstretched and under resourced police force.
CLARKE V HURST 1992 (D):

Pertains to Euthanasia.
Facts:
 In 1988 the applicant’s husband (the patient) went into cardiac arrest and since the incident, had been in a persistent and irreversible
vegetative state and was fed artificially by means of a naso-gastric tube.
 The applicant applied to be appointed as a curatrix personae in respect of the patient, with powers in that capacity to authorise the
discontinuance of any treatment to which the patient was subjected, specifically the discontinuance of any naso-gastric or other non-
natural feeding regime, and to act in this manner notwithstanding that the implementation of such decision might hasten the patient's
death.
 The patient, a medical doctor, was a life member of the SA Voluntary Euthanasia Society and had signed a document headed 'A Living
Will', directed to his family and physician, in which he requested that in the event of there being no reasonable expectation of his
recovery from extreme physical or mental disability, he be allowed to die and not kept alive by artificial means.
 The third respondent, the Attorney-General, opposed the application, stating that what the applicant was in fact asking for was an order
declaring that she would not be acting unlawfully if she were to authorise the discontinuance of artificial life-sustaining measures such
18
as naso-gastric feeding and that the State would not decide to prosecute should steps be taken to terminate the patient's life and that the
Court should refrain from making a declaratory order which would anticipate facts which have yet to come about.
Court ruling:
 The Court held that it was entitled, despite the opposition of the Attorney-General, to exercise its discretion in an appropriate case in
favour of declaring whether the adoption by an applicant of a certain course of conduct would constitute a crime and that the instant case
was a proper one for the exercise of the Court's discretion.
 The applicant, who was facing an agonising decision, was entitled to have the legal position dispassionately and objectively determined
by the Court.
 The dictum in British Chemicals and Biologicals (SA) (Pty) Ltd v South African Pharmacy Board1955 (1) SA 184 (A) applied: The
Court, applying the principles set out above, held that the decision whether the discontinuance of the artificial feeding of the patient and
his resultant death would be wrongful depended on whether, judged by the boni mores of society, it would be reasonable to discontinue
such artificial feeding, and that the decision of that issue depended on the quality of the life which remained to the patient.
 The Court held that the patient's brain had permanently lost the capacity to induce a physical and mental existence at a level which
qualified as human life and that in these circumstances, judged by society's legal convictions, the feeding of the patient did not serve the
purpose of supporting human life as it is commonly known.
 The Court accordingly held that the applicant, if appointed as curatrix, would act reasonably and would be justified in H authorising the
discontinuing of the artificial feeding of the patient and would therefore not be acting wrongfully if she were to do so, notwithstanding
that the implementation of her decision might hasten the death of the patient.
 The Court finally held that in our law the curator personae was under a duty to act in the best interests of the patient and not necessarily
in accordance with his wishes but that in the instant case it could not be said that the applicant would not be acting in the best I interests
of the patient if she were to discontinue the artificial feeding regime: although the Court approached the interests of the patient with a
strong predilection in favour of the preservation of life, it however did not extend as far as requiring that life should be maintained at all
costs irrespective of its quality.
 Furthermore, this view accorded with the patient's wishes as expressed when he was still in good health and should be given effect to.
Conclusion:
The application was allowed and the order granted J accordingly.
19
CAPACITY CASES:
NON-PRESCRIBED:
These cases aren’t prescribed but are NB to know.
S V CHRETIEN 1981 (AD):

The case abolished the specific intent rule regarding intoxication and also replaced the previous authority of S v Johnson.
Facts:
 The accused had attended a party at which there was a good deal of drinking and which broke up in circumstances of some discontent.
 While under the influence of liquor, C had driven his car into a crowd of people who had been at the party and who were standing in the
street, killing one and injuring five.
 On charges of murder and attempted murder, the trial court found the accused guilty of culpable homicide but acquitted him of murder
and even of common assault.
 The court a quo accepted that, in view of the accused’s explanation that, in his drunken state, he expected that people would move out of
his way, there was some doubt as to whether he had the requisite intention for common assault (attempted murder).
20
Issue before the AD:
The issue before the AD was whether on the facts, the learned Judge was correct in law in holding that the accused on a charge of attempted
murder could not be convicted of common assault where the necessary intention for the offence charged had been influenced by the voluntary
consumption of alcohol.
Arguments put forth:

The state argued that the trial court should have applied the ruling in the case of Johnson and found the accused guilty of common assault, even
if the lacked mens rea on account of his intoxication.
Ruling and reasoning in the AD:

 Rumff CJ who delivered the unanimous judgment in the AD, concluded that even common assault requires an intention to assault and if
this intention is lacking (or is not proved) due to voluntary intoxication, there can be no conviction on such a charge.
 In finding that Chretien had not been proved to have such intention, the Chief Justice had to accept the finding of the court a quo that the
accused, in his drunken state, expected that the bystanders would move out of his way.
 Furthermore, Rumff described the rule in Johnson (that voluntary drunkenness was not a defence except where it led to insanity) as
juridically impure.
 The CJ also dismissed the specific intent rule on the ground that there is no place for it in SA law.
The extent of the voluntary intoxication in order for it to be a complete defence:

 In holding that voluntary intoxication could be a complete defence to criminal liability, Rumff CJ stressed the importance of the degree
of the accused’s intoxication.
 He noted that there are two extremes of drunk people namely: a person who is ‘dead drunk’ (smoordronk) and the person who is slightly
drunk in the sense that the liquor had an insignificant effect upon his or her mental state.
 According to Rumff, a person who is ‘dead drunk’ could be acquitted if he or she was so drunk that his or her conduct was involuntary,
which would also mean that the person was unable to distinguish right from wrong or to act in accordance with that appreciation.
 In respect of a person who is slightly drunk, Rumff held that such a person would have no defence since his criminal capacity has not
21
been affected.
 Between these two extremes, where the accused’s conduct is purposive there are varying degrees of intoxication, and liability or no
liability depends on whether the accused had been deprived of criminal capacity.
Conclusion:
 Intoxication of a sufficient degree can, therefore, serve to exclude the voluntariness of conduct, criminal capacity or intention.
 However, despite this assertion, Rumff CJ saw the problem of voluntary intoxication not so much as one of what principle to apply, but
rather as to the manner in which it is applied.
 Therefore, in this case, Rumff clearly indicated that a high degree of evidence will be required before voluntary intoxication is accepted
as a defence to criminal liability.
Intoxication after Chretien:

 This judgment was criticized on the grounds that it might well have miscalculated the community’s attitude to intoxication.
 After the judgment, the question then arose as to whether a person, who commits a prohibited act while extremely intoxicated, can
escape all criminal liability.
 This matter was considered in 1982 and in 1988 the Criminal Law Amendment Act was passed to fill the gap left by Chretien.
S V WIID 1990 (AD):

This case recognized provocation as a defence excluding criminal capacity.

The court upheld a defence of non-pathological incapacity. The court found that since it was not clear that the accused had acted voluntarily
(she had been abused by the deceased, consumed pills and alcohol, assaults from the deceased left her with head injuries, expert evidence was
brought in), there was reasonable doubt regarding her capacity.
22
Facts:
 The appellant was charged with the murder of her husband.
 She was convicted and sentenced to only 5 years due to extenuating circumstances.
 She took the matter on appeal to the AD appealing her conviction.
 She admitted to firing 7 shots but claimed to have been in a state of severe emotional stress due to abuse (i.e. she couldn’t remember
event). Thus she claimed temporary lack of capacity at the time of the alleged offence.
 The onus is on the prosecution to prove capacity beyond reasonable doubt– the accused need only provide an evidentiary basis for the
defence.
Court ruling & reasoning:

 The court took into account, inter alia, the following:
 The deceased had abused his wife over a number of years;
 Prior to the shooting the accused had consumed a significant quantity of pills and alcohol and had been assaulted by her husband
resulting in numerous head injuries.
 A witness said that after the shooting the accused was disorientated and did not seem to know what she had done (a number of experts
were called to testify to the accused’s state of mind).
 The court held that it was not clear that the accused had acted voluntarily and that there was reasonable doubt as to whether she had
criminal capacity.
 It is worth remember that with this case, evidence was presented that the accused may have been concussed, or acting involuntarily, as a
result of severe blows inflicted on her by the deceased shortly before she fatally shot him.
Conclusion:
On the facts, particularly the fact that the threat of violence was in accordance with the deceased’s character, the appellant was found not guilty
and discharged.
PRESCRIBED:
23
S V EADIE 2002 (SCA):
Case pertains to raising a defence of non-pathological incapacity (provocation/emotional stress) in an attempt to negate capacity.

 S v Eadie officially equated provocation (or non-pathological incapacity) with involuntary conduct. In other words, provocation is only a
defence where it leads to involuntary conduct on the part of the accused (known as ‘sane automatism’)
 This case is important as it comprehensively reviews past jurisprudence on the defence of provocation and emotional stress.
Furthermore, it is important as both the High Court and the SCA drew a pragmatic distinction between loss of control and loss of
temper.
Facts:
 Eadie had battered a fellow motorist to death with a broken hockey stick, in a fit of purported road rage and had been drinking heavily at
the time of the offence.
 He raised the defence of temporary non-pathological criminal capacity but his defence was rejected by the court a quo.
 After being convicted of murder, he appealed to the SCA.
Legal issue:
The primary issue before the court of appeal was whether the appellant lacked criminal capacity at the time that he killed the deceased.
Court ruling:
 Navsa JA in his judgment comprehensively reviewed the jurisprudence on provocation and emotional stress as well as the historical
development of the defences of temporary non-pathological incapacity and sane automatism.
 After reviewing the above, he concluded that provocation and emotional stress are one in the same thing.
 He went on to hold that a normal person can only lack self-control, and hence criminal capacity, if he is acting in a state of automatism.
 He also indicated that, although the test of capacity might still remain, in principle, essentially subjective, the application of this test is to
be approached with caution.
24
 The courts must not too readily accept the ipse dixit of the accused regarding provocation or emotional stress. A court is entitled to draw
a legitimate inference from what “hundreds of thousands” of other people would have done under the same circumstances: that is, by
looking at the objective circumstances.
 Drawing such an inference could result in the court’s disbelieving an accused who says simply, without adducing any further evidence,
that he lacked capacity or acted involuntarily under provocation or emotional stress.
Conclusion:
 Eadie thus affirmed the High Court’s finding that the accused could not successfully raise the defence of non-pathological incapacity on
the facts.
 Both the High Court and the Supreme Court of Appeal drew a pragmatic distinction between loss of control and loss of temper.
 Eadie
signals a warning that in future the defence of non-pathological incapacity will be scrutinised most carefully.
 Persons who may in the past have been acquitted in circumstances where they had killed someone who had insulted them will find that
courts will scrupulously evaluate their ipse dixit in the context of objective standards of acceptable behaviour.
 On this interpretation of Eadie, capacity remains subjectively tested in principle, but the practical implementation of the test must
accommodate the reality that the policy of the law, with regard to provoked killings, “must be one of reasonable restraint.”
Burchell’s criticisms of this case:

Burchell states that there can be no doubt that the HC and the SCA in Eadie reached the correct decision on the facts (finding the accused guilty
of murder). However, despite this, the central issue is the extent to which the judgment of Navsa JA goes into revisiting the approach of the
courts to provocation as a defence to criminal liability.
The approach of Navsa:

 Navsa JA clearly indicated that the courts must not too readily accept the ipse dixit of the accused regarding provocation or emotional
stress and that the courts are entitled to draw legitimate inferences from objective circumstances.
 He also states that by Navsa JA equating the second part of the capacity inquiry with that which looks into the voluntariness of the
conduct, he in effect went further ultimately holding that the provocation would in future only be a defence when it led to involuntary
25
conduct (automatism) or where the accused lacked capacity to appreciate the wrongfulness of conduct (the cognitive part of capacity).
 In other words, where the accused lacked the capacity to act in accordance with the wrongfulness of conduct (the conative as opposed to
cognitive part of capacity- second leg of the test) there would no longer be an independent defence available to the accused unless his or
her conduct reached the state of involuntary conduct (automatism).
Navsa on ‘objectifying the capacity inquiry’:

 Although Navsa recognized the role of inferences in keeping a defence of provocation and emotional stress within reasonable bounds, he
specifically rejected the option of objectifying the capacity inquiry and did not take the route of abolishing the defence completely.
 Rather, the judge preferred to re-examine the decided cases on the scope of the defence. After re-examining such cases he concluded
that, in the past, the courts had equated the second part of the capacity inquiry (the conative leg of the test) with the voluntariness of the
conduct in the context of provocation and emotional stress cases.
 However, some of the authority used by Navsa to arrive at this conclusion that voluntariness and conative capacity are one in the same,
involved cases where the defence raised was in fact sane automatism and not capacity.
 Burchell contends that the Eadie case revealed confusion on the part of the expert witnesses specifically on the distinction between
involuntary conduct and non-pathological incapacity and he said that it was up to Navsa to provide clear answers and expel the
confusion.
 However, in effect, Burchell contends that the Eadie judgment only served to add further confusion by redefining the general
requirement of capacity and merging the separate concepts of capacity and voluntariness. So, in essence, changing legal principle in the
context of provocation, and potentially in the case of emotional stress. For example: it is not entirely clear whether a rule limiting the
scope of a defence of provocation in cases of automatism will have an impact on instances where a defence of lack of capacity resulting
from intoxication may arise.
 This confusion is further compounded by the fact that the appeal judge in Eadie said that he was not persuaded that the second legal of
the capacity inquiry should fall way.
S V RAMDREASS 2017 (KZD):

Among other things, this case pertains to intoxication as a means to negate capacity.
26
 In this case the court stressed that an inability to remember is not the same as automatism.
 Therefore, the test is not whether X has the ability to remember what happened when the crime was committed, but whether at a crucial
moment they had the ability to subject their bodily movements to their will or intellect.
 According to this case, acts done in this state are typically out of character and when the period ends, the person comes to their senses
and is horrified by their actions.
 The accused tends to lend assistance to the victim rather than trying to flee the scene.
 Furthermore, the case states that a hallmark definition of automatism is that there is no evidence of premeditation.
Facts of the case:

 Mrs. Singh arrived home in the early hours of the morning to find her daughter strangled to death.
 The accused was the daughter’s boyfriend who lived with them.
 The accused and the victim’s car were both missing but the car was found later as was the accused.
 The accused claimed that he had no recollection of what happened to Mrs. Singh’s daughter nor how he arrived in Umhlanga.
 He had been drinking and had smoked cracked cocaine on the night of the murder- he claimed he had no collection of the murder due to
how intoxicated he was from the consumption of alcohol and drugs.
 Specifically, the accused claimed that he had no awareness of his actions or his intention to commit them.
 Consequently, the accused was charged with murder and robbery under aggravating circumstances.
Legal issue:
The issue before the court was whether the accused could raise the defence of incapacity based on his state of intoxication?
Legal principles:
Criminal capacity:
 There are two aspects to criminal capacity IE: the capacity to appreciate the wrongfulness of one’s conduct and, the capacity to act in
accordance with that appreciation.
 If a person lacked such capacity, then it cannot be said that he acted unlawfully and the issue relating to intention or negligence does not
27
arise.
 The position in our law (taken from S v Chretien) is that if a person is so drunk that he does not realise what he or she is doing/cannot
appreciate the unlawfulness of the conduct, they are not said to be criminally responsible as they lack capacity.
 However, with that said, the mere fact that someone cannot remember what they did when they were intoxicated does not mean that they
are not criminally responsible altogether due to the enactment of S1 of the Criminal Law Amendment Act.
Court reasoning:
 The Judge was satisfied by the evidence that the accused had murdered Mrs. Singh’s daughter.
 However, with that said, the court had determine whether he had capacity when he did so.
 The court used the totality of evidence to decide if the state had proven that the accused had capacity & intention beyond a reasonable
doubt.
 Evidence showed that the accused was generally a loving, non-violent and usually sober person. Even after the incident occurred, in the
morning, the accused seemed disorientated and unaware that his girlfriend was dead. The accused did not even assist arrest and
voluntarily gave himself in.
 According to psychiatric evidence, the accused was fit to stand trial, there were no signs of mental illness or of a mental defect at the
time of the incident. Furthermore, evidence regarding amnesia was inconsistent and contradictory according to the court.
 The court rejected the claim that the accused faked his inability to remember the incident.
 There was no sufficient evidence provided that the accused had capacity IE: that he was unaware of the wrongfulness of his actions at
the time due to his intoxication.
 The accused also wanted to plead guilty until he was advised that he may be innocent and therefore, he was said to have no nefarious
intentions.
Conclusion:
28
The State failed to show beyond reasonable doubt that accused had required crim capacity and therefore, he was acquitted on both counts
(murder and robbery).
FAULT CASES:
INTENTION
29
TISSEN:
This case pertains aberratio ictus rule.

Although there has been strong support for the aberratio ictus rule, the fault (mens rea) approach (to the aberratio ictus situation) derives
support from the judgment of Holmes JA in Mtshiza and was applied in the case of Tissen. This case illustrates the requirement of intention in
respect of aberratio ictus (‘a blow that goes astray’).
Facts of the case:

 The appellant was charged before a regional count on two counts.
 The first count was that of assault with intent to murder D’Oliveira and the other count was assault with intent to cause grievous bodily
harm to Maria Faria, with both counts involving the use of a gun.
 The appellant pleaded not guilty to both counts however, on the first count he was convicted of assault with intent to murder and on the
second count he was convicted of common assault.
 Accordingly, he was sentenced to seven years’ imprisonment on count 1 and two years’ imprisonment on count 2.
 The appellant then appealed both convictions and sentences.
Judgment:
Appeal of count 1:
On appeal, the judge held that ‘in my view the conviction on the first count ‘assault with intent to murder’ was unassailable.
Appeal of count 2:
In terms of the second count, the court held that the bullet which struck Miss Faria in the head was almost certainly an aberratio ictus IE: a
30
literal defection of the blow.
Reasoning:
 The court took note of Holmes JA’s description of the aberatio ictus rule as being no more than a ‘convenient Latin expression
descriptive of the situation where a blow aimed at A misses him and lands on B’.
 The court then refers to the ratios of the Kuzwayo, Koza and Mabena cases.
 Kuzwayo case: Van den Heever JA in the case of R v Kuzwayo held that the appellant must necessarily have contemplated the likelihood
of killing one person other than his intended victim, and that on the authority of Roman-Dutch commentators, the accused was guilty of
murder.
 Koza case: In this case, the court held that where a person commits an act intending to murder one person but kills another, he is guilty
of murder that other person.
 Mabena: the same was held in the Mabena case.
Reference to Mtshiza:
 The court notes Homes JA’s minority judgment in Mtshiza which criticized the ratio’s in the three aforesaid cases.
 Holmes JA, having described the aberratio ictus rule as ‘no more than a convenient Latin expression…’, drew attention to the fact that
the Kuzwayo & Koza cases were decided before this doctrine had moved away from the old doctrine of versari in re illicita and before
this court had finally formulated the principles of dolus eventualis in the form in which it is now applied.
 Holmes JA concluded: ‘the result is that nowadays criminal liability is not regarded as attaching to an act or a consequence unless it was
attended by mens rea… Accordingly, if A assaults B and in consequence B dies, A is not criminally responsible for the death unless-
 A foresaw the possibility of resultant death, yet persisted in his deed, reckless whether death ensured or not; or
 He ought to have foreseen the reasonable possibility of resultant death.
In (A) the mens rea is intent in the form of dolus eventualis and the crime is murder and in (B) the mens rea is negligence, and the
crime is culpable homicide.
In this case, the statement of the law by Holmes JA was followed and the aberratio ictus rule of the previous AD decisions (which per se
resulted in liability for harm to, or death of, the ‘unintended victim) was rejected on the ground that it was not in conformity with the present-
day insistence upon proof of mens rea for every crime charged in respect of the ‘unintended victim’.
31
Application of the principle derived from the reasoning of Holmes JA:
 In applying the principles derived from the reasoning of Holmes JA, the court held that it was satisfied that the conviction on count 2 in
the present case was justified and that the appeal against the conviction must fail.
 This was based on the following reasoning:
 The court stated that although the present case was not an example of a killing by an abberatio ictus but rather only of wounding the
unintended victim, the court saw no difference in principle.
 Thus, Margo J in this case concluded: ‘Here the appellant, in shooting at his intended victim in a crowded street… Must have foreseen
subjectively the possibility of killing or injuring some person other than the intended victim and he was reckless as to whether death or
injury resulted or not’.
 Burchell states that the phrase ‘some person other than the intended victim’ would be too wide and ought to be confined to the aberratio
ictus situation which arose in Tissen where the accused in this case, fired several shots at Y, in a crowded street, one of which hit Z.
 Here, the accused clearly had legal intention (dolus eventualis) in its indeterminatus form since he foresaw the possibility of missing Y
and hitting some member of the crowd. But for ‘the crowded street’, however, dolus eventualis would be dependent upon proof that the
accused foresaw the possibility of killing or injuring the very person killed or injured.
The appeal of the sentencing:

 The appeal against the sentence of seven years' imprisonment on count 1 was dismissed.
 The appeal against the sentence on count 2 succeeds to the extent that it was ordered that the sentence of two years' imprisonment on
that count should run concurrently with the period of seven years' imprisonment on count 1.
DPP GAUTENG V PISTORIUS:

This case pertains to error in objecto & dolus eventualis.
Facts:
 In the early hours of 14th February 2013 the respondent, Oscar Pistorius, shot and killed his 29 year old girlfriend, Reeva Steenkamp, at
his home in a secured complex.
32
 After this, Pistorius was tried in the Gauteng High Court on several charges including the murder of his girlfriend.
 Although it was common cause that the accused had shot and killed the deceased, the trial court then found him not guilty of murder but
guilty of culpable homicide.
 The Director of Public Prosecutions contended that the trial court erred on certain legal issues and now appeals to this court arguing that
the appropriate conviction be one of murder.
Legal issues:
The issues before this court where as follows:
1. Whether the principles of dolus eventualis were correctly applied to the accepted facts and the conduct of the accused, including error in
objecto
2. Whether the court correctly conceived and applied the legal principles that pertain to circumstantial evidence and/or pertaining to
multiple defences by an accused.
3. Whether the court was correct in its construction and reliance on an alternative version of the accused and that this alternative version
was reasonably possibly true.’
Judgment:
Culpable homicide or murder?

 The accused’s conviction and sentence on count 1 was set aside and replaced with the following: ‘the accused is guilty of murder has he
had criminal intent in the form of dolus eventualis’.
 As a result, the accused was convicted of murder as had criminal intent in the form of dolus eventualis.
Whether the principles of dolus eventualis were correctly applied:

 The court held that the High Court had not correctly applied the principles of dolus eventualis and had rather taken an objective
approach to dolus.
 The court held further that Pistorius had acted with dolus eventualis given the nature of his weapon and ammunition and given the small
size of the toilet cubicle with which he aimed, he must have foreseen the possibility that in firing a shot he might of killed the person
33
inside.
 Furthermore, the court notes that Pistorius had continued to then fire four shots, suggesting that he had reconciled himself to this
possibility.
Whether Pistorius had acted in putative private defence?

The court held that Pistorius had not acted in putative private defence as he had provided no factual basis for his purported belief that the person
behind the door was about to attack him.
Following this judgment, the matter was then referred back to the trial court to consider an appropriate sentence in light of the comments of this
judgment.
Further discussion on this case from the textbook:

 In this case the accused put forth that he when he fired into the toilet cubicle he thought he was firing at an intruder, when it fact it was
girlfriend.
 The SCA, in this case, took the view that the accused does not have to know or foresee the identity of his or her victim and the Appeal
court seemed to accept that this conclusion involved invoking the so-called error in objecto principle.
 In other words, the SCA said that the accused’s mistake as to the identity of the person he killed is irrelevant.
Burchell’s criticisms of the Pistorius judgment:

Burchell is critical of the SCA’s approach in the Pistorius case as he states that the court appeared to have equated dolus indeterminatus with
error in objecto and in doing so, applied dolus indeterminatus incorrectly.
 In Pistorius, the SCA took the view that the accused does not have to know or foresee the identity of his or her victim and the Appeal
court seemed to accept that this conclusion involved invoking the error in objecto principle.
 Burchell puts forth that the extension of the so-called error in objecto principle from cases of dolus directus to those of dolus eventualis
leads to an automatic exclusion of relevance of the identity of the victim from the intention inquiry.
34
 Furthermore, he notes that South African criminal law is against imputed fault and has, by contrast, relentlessly pursued a subjective and
principled approach to dolus. Thus, by imputing fault through the use of the error in objecto principle, it would be to go against the
current approach in our law.
 Burchell says that it would be preferable to abandon the use of this principle in our law altogether and rather rely on the general principle
of dolus indeterminatus to achieve the correct balance between individual responsibility and crime control.
 However, instead of doing this, the SCA has appeared to assume that the recognized legal concept of general intent or dolus
indeterminatus is equivalent to the error in objecto principle.
 Burchell states that the court have, in essence, applied dolus indeterminatus incorrectly and the effect of this is that the deceased did not
fall within the group of possible victims that the accused could have foreseen behind the toilet door.
S V MAKGHATO:
Case pertains to dolus eventualis and the element of possibility.
Sorry- still need to go through this full judgment, what I have below has been taken directly from PJ’s notes. The full judgment can be found at
the bottom of Fault A notes.
Facts of the case:

The accused walked into a tavern and fired two shots into the air. A person was killed as a result.
Court ruling:
Prior to 2013 there was some dispute whether any possibility would suffice no matter how remote. The court found that the accused had
foreseen the real possibility that someone could be injured and therefore held that for liability to arise the accused must foresee the consequence
as a real or reasonable possibility.
S V BOTHA:
35
This case pertains to dolus eventualis & the element of recklessness.
See a case summary of this case above.
GOOSEN (NON-PRESCRIBED):
Pertains to dolus eventualis and intention.
Facts:
 Goosen joined a gang who intended to rob an elderly man as he left work.
 One of the gang members had a gun but they thought it was unlikely that they would use it (but still possible).
 The gang followed the old man to his car as he left work and at a stop street they jumped out and surrounded him.
 The deceased’s foot slipped off the brake, and because the car was an automatic, the car moved forward and the gang member who had
the gun (no the appellant) accidently shot the deceased.
 In the court a quo the appellant, on the advice of his legal representative, had pleaded guilty to the charge of murder and he was
convicted and sentenced to death. The matter then went on appeal before the AD.
Court ruling:
 The court found that although the appellant had foreseen the possibility of a deliberate shooting he had not foreseen the possibility of an
accidental shooting and was consequently, guilty of culpable homicide and not murder.
 In other words, 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.
 He got a sentence of six years imprisonment.
Thus today, due to the Goosen case, it must be noted that there has to be a correlation between the foreseen and the actual manner of the
consequence occurring. The result of this is that the accused can only raise a defence excluding intention if the consequence occurs in a way
that is significantly different from the manner that the accused foresaw.
KNOWLEDGE OF UNLAWFULNESS
36
S V DE BLOM:

 The unanimous decision of the AD in this case boldly removed the ignorantia juris rule from South African criminal law with the
dramatic result that, in line with principle and logic, knowledge on the part of the accused of the unlawfulness of his or her conduct is
now always a requirement of mens rea in the form of intention.
 In other words, as a result of this judgment, genuine ignorance or mistake of law negatives mens rea in respect of the unlawfulness
element and therefore, excludes liability.
Facts:
 The appellant (Mrs. De Blom) was charged with contravening regulations 3 (1) (a) and 10 (1) (b) respectively of the Exchange Control
Regulations which were then in force.
 These regulations provided that a person committed an offence, if he or she took jewellery worth more than R600 out of the country
without permission and; if when leaving the country, he or she took foreign currency out of the country without permission.
 Mrs. De Blom had jewellery worth R14 000 with her and USD worth 40 000.
 Mrs De Blom wore a lot of jewellery and travelled with it and had done so on other occasions without been prosecuted
 Mrs. De Blom’s defence was that she had not known that there were regulations which prohibited her from taking jewellery, as well as
foreign currency, out of the country.
Court ruling:
 On appeal, Rumff CJ found that the regulations required mens rea for liability either in the form of intention or negligence and held that
the appellant was guilty on the first count ‘even if the regulation requires mens rea in the form of intention, since Mrs. Blom knew that
she needed permission to take the money out of the country and she had not obtained such permission.
 However, the appeal on the second count relating to jewellery succeeded since, even if negligence (culpa) was sufficient for liability on
this count, the prosecution had failed to prove unreasonable lack of knowledge of unlawfulness beyond reasonable doubt.
 Therefore, she was acquitted on the jewellery charge on the basis that she did not know she was breaking the law.
37
Expression of Rumff, CJ’s finding:
‘If it is… accepted that she has a lot of jewellery, and this was not denied, that she wears more jewellery than the average South African lady,
that she had on previous occasions taken jewellery out and had returned it, and that she intended returning with the jewellery, …then… her
evidence may reasonably possibly be true, that, in the circumstances of the case as a whole, it is reasonably possible that she could have been
under the impression that she did not need permission to take the jewellery out… and that, in the view of her past experiences when she was
allowed to take the jewellery out and return it again, no legal blame attached to her for her failure to enquire whether or not she needed
permission to take the jewellery with her. Even if culpa is a sufficient form of mens rea for the purposes of the present offence, the state has, in
my opinion, still failed to prove the required mens rea, in connection with the jewellery, beyond a reasonable doubt’.
Critical assessment of this case:

 De Blom has been followed, and the decision has been welcomed by academic writers however, despite this, some commentators have
taken the view that the AD went too far and that the principle adopted in De Blom favours the ‘wrongdoer’.
 Furthermore, the commentators submit that the fairest and most practical solution would be to have a general rule that (ignorance) or
mistake of law will not negate liability even for crimes that require intention unless it is reasonable to do so.
 This would mean that intention in respect of unlawfulness would be judged objectively and not subjectively.
 However, despite what these academic commentators have said, the De Blom rule is clear and accords with legal theory and principle.
 Judicial indications are also that the De Blom rule works well in practice.
The post De Blom Era:

Despite initial fears that the De Blom ruling would result in an abuse of the defence, in general, the defence has not posed any major practical
difficulties to the courts in applying it and there have been no negative side effects.
INTENTION IN STATUTORY OFFENCES:

S V VAN ZYL (NON PRESCRIBED):
38
Courts have said that intention will be assumed to be required in all statutory offenses unless it is clearly shown that negligence will suffice.
This was clearly articulated in the case of S v Van Zyl.
Facts of the case:

 The accused was charged with failing to switch off a cell-phone when the plane in which he was travelling, was about to land.
 The penalty for failing to do so is a minimum of 5 years in prison.
Court reasoning:
In determining whether intention or negligence would be an appropriate form of fault the courts will take the following into account:
 The language of the provision: (maliciously, knowingly, corruptly, fraudulently indicating intention)
 Context of the prohibition (i.e. is it needed to deal with a serious problem e.g. polluting a water source)
 Scope and object of the statute (similar to above – is it needed to promote a public good e.g. combat terrorism)
 The nature and extent of the penalty
 The difficulty of enforcement if intention was required.
In relation to some statutory offence the courts have been even stricter and said that dolus directus is required and that dolus eventualis will not
suffice. (this is usually where the statutory offence is very wide or very difficult to comply with) The legislature can also theoretically create an
offence that requires no fault at all. However, such an offence would infringe the constitutional right to freedom and security of person and it is
highly unlikely that it would be considered a justifiable limitation.
Conclusion:
The court held that given the minimum sentence, negligence would not suffice as a fault requirement for this statutory offence.
39
NEGLIGENCE
R V MBOMBELA
Facts of the case:

 In this case the accused was convicted of the murder of a 9 year old child whom he mistakenly thought to be a tokoloshe.
 The accused, between 18 and 20 years of age, living in a rural area was described by the court as of ‘rather below the normal’
intelligence.
 On the day in question, some children were outside a hut which they supposed to be empty, and they saw ‘something that had two small
feet like those of a human being’. They were frightened and called the accused.
 The accused apparently thought the object was a tokoloshe, an evil spirit, which according to a widespread superstitious belief,
occasionally took the form of a little old man with small feet.
 According to this belief which was shared by the accused it would be fatal to look this spirit in the face.
 The accused fetched a hatchet and, in the half light, struck the form a number of times with the hatchet. When he dragged the object out
of the hut he found that he had killed his young nephew.
 His defence was that he genuinely believed that he was killing an evil spirit, not a human being.
 On appeal, the defence was rejected on the ground that to succeed the mistake had to be reasonable. A conviction of culp was
substituted.
Judgment by De Villiers JA:

 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.
Quotes from De Villiers JA:
40
 A reasonable belief, in my opinion is such as would be formed by a reasonable man in the circumstances in which the accused was
placed in a given case.
 The reasonable man is in this connection is the man of ordinary intelligence, knowledge and prudence (one standard of reasonableness in
SA at the time).
 It follows that mistake of fact is not reasonable if it is due to lack of knowledge and intelligence as is possessed by an ordinary person, or
if it is due to such carelessness, inattention and so forth, as an ordinary person would not have exhibited.
 There would be no standard of reasonableness if everyone’s specific context was taken into account, the jury would only have to ask the
question then if whether the act was bone fide (therefore age/ race/ intelligence/ idiosyncrasies are not to be taken into account).
 The learned judge directed the jury wrongly in respect of what the Code required, and that if the belief of the accused was found to be
genuine (as was established) the jury should have been directed to find him not guilty or guilty of culpable homicide.
 The court, sets aside the conviction and the death sentence, and in lieu thereof the accused is found guilty of culpable homicide.
41
SPECIAL FORMS OF LIABILITY CASES:
K V MINISTER OF SAFETY & SECURITY 2005 (CC):
Facts:
The applicant, who was cruelly raped by three uniformed policemen who had given her a lift, applied for leave to appeal to the Constitutional
Court against a judgment of the Supreme Court of Appeal (SCA) which held that the respondent was not indirectly liable for the policemen's
conduct.
Issues
1. What was the courts duty to develop the common law with Section 39(2) of the constitution ?
2. What was the constitutionality of the common law principles stating that the vicarious liability of the employer for the delictual act?
3. What was the Minister of Safety and Security liability for the criminal acts performed by police officers while on duty?
Reasoning:
Issue 1:
 The first issue looked at the purpose of Section 39(2) of the Constitution of South Africa, 1996.
 Its purpose is to ensure the normative value system which was created by the Constitution infiltratesthe common law.
 The courts are bound by Section 39(2) when contemplating a radical departure from existing common-law rules, and also when an
incremental development thereof in issue.
42
Issue 2:
 In terms of the second issue the court distinguished between the principles themselves and their application.
 The traditional notion of the application of these principles as matter of fact untrammelled by considerations of law or normative
principles was found to be constitutionally untenable.
 The application of the principles was accordingly in need of development to conform to the normative framework of the Constitution.
 The pervasive normative effect of our Constitution was acknowledged by this Court in Carmichele v Minister of Safety and Security.
 This meant no more than that a court must bear in mind constitutional norms when deciding whether the case before it is in principle one
in which the employer should be held liable.
 The principles themselves, as embodied in the present two-stage test, focusing on the subjective question as to the state of mind of the
employee, together with the objective question as to whether there is a sufficient link between the conduct of the employee and the
employer's enterprise, were found to be consistent with constitutional norms.
Issue 3:
 Lastly, when the court dealt with the issue of liability, to determine whether or not the Minister was vicariously liable, the court used a
two-stage common-law test for liability, developed in light of the normative framework of the Constitution.
 This test, drawn from the case of Minister of Police v Rabie had both a subjective stage (evaluating the state of mind of the employee)
and an objective stage (considering the link between the delict and the employer's enterprise).
 The policemen, subjectively viewed, were found to have acted in pursuit of their own objectives. Their conduct, however, was
sufficiently linked to their employment as policemen, particularly when viewed against the background of the Constitution. The
Minister, accordingly, was held to be vicariously liable.
43
Judgment by O’Regan:
 O’regan J wrote the majority judgment. All the judges concurred with this judgement. In her decision she held that the protection of the
applicant's fundamental rights were found to be of profound constitutional importance. It was also part of the duties of every police
officer to ensure the safety and security of the public and to prevent crime. These, were constitutional obligations stated by the Police
Act.
 O'Regan J held further that, if the principles of vicarious liability were regarded in light of section 39(2) of the Constitution, it became
clear that to characterise their application, not limited in any way by considerations of law or normative principle, could not be correct.
The effect would be to cleanse the common-law test for vicarious liability and to get rid of any normative or social or economic
considerations. The principles of vicarious liability were inspired by social policy and normative content; their application would always
prove to be difficult. The principles of vicarious liability and their application had therefore to be developed to accord more fully with
the spirit, purport and objects of the Constitution.
 O'Regan J looked at the common-law principles of liability. She cited the test in Minister of Police v Rabie, which focused both on the
subjective state of mind of the employees and the objective question of whether or not the deviant conduct was nevertheless sufficiently
connected to the employer's enterprise. This test, was very similar to that employed in other jurisdictions. This test contained both a
factual assessment and a consideration raising a question of mixed fact and law: the objective question of whether or not the delict
committed was "connected to the business of the employer" to render the employer liable.
 Further, for an employee simultaneously to commit a delict for his own purposes, and neglect to perform his duties as an employee. It
was clear, in the present case, that the delict for which the applicant sought to hold the respondent liable was the rape, and that the rape
had been a deviation from the policemen's duties. They were, however, simultaneously omitting to perform their duties as policemen.
 O'Regan held that, the three policemen did not rape the applicant upon the instructions of the respondent; nor did they further the
44
respondent's purposes or obligations when they did so. They were subjectively acting in pursuit entirely of their own objectives, not
those of their employer. O'Regan J found that it had been objectively reasonable of the applicant to place her trust in the policemen.
Conclusion
 In conclusion, the leave to appeal was granted and the order from the Supreme court of Appeal and the costs were set aside.
 The respondent was ordered to pay for all costs incurred in all courts by the applicant. The Constitutional Court held the state vicariously
liable for the raping of the applicant by three on-duty policemen.
 By finding that this delict was committed within the course and scope of the police officers’ employment, the court has significantly
widened the ambit of the state’s liability for delicts committed by police officers. It also represents an about-face from South African
law’s traditional reluctance to impose vicarious liability for delicts involving an intentional abandonment by the employee of her
employment duty .
NON-PRESCRIBED:
 S v Glover
 S v Coetzee
45

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UNLAWFUL CONDUCT (ACTUS REUS)

MOKGETHI 1990 (AD)

Importance of the case:

Formulation of ‘sufficiently close connection’ test:

Exception in terms of medical intervention constituting a novus actus:

S V TEMBANI 2007 (SCA)

Importance of the case:

MINISTER OF POLICE V SKOSANA 1977 (AD)

S V DANIELS 1983 (AD):

Importance of the case:

Judgment 1: Nicholas J and Botha J

Example of doctrine of common purpose:

Judgment 2: Jansen, J & Van Vinsen, J

Judgment 3: Acting judge Trengrove

LEE V MINISTER OF CORRECTIONAL SERVICES 2013 (CC):

Importance of the case:

Court reasoning & ruling:

EFF V MINISTER OF SAFETY & SECURITY 2018 (SCA):

CASES ON DEFENCES EXCLUDING UNLAWFULNESS:

Court reasoning and ruling in the SCA:

EX PARTE MINISTER VAN JUSTISIE: IN RE S V VAN WYK 1967 (AD):

Importance of the case:

Rejection of the principle of proportionality:

Importance of the case:

Facts of the case:

Facts of the case:

S V GOLIATH 1972 (AD):

Importance of the case:

Decision in the trial court:

CHRISTIAN EDUCATION SA V MINISTER OF EDUCATION 2000 (CC):

Importance of the case:

Where does this leave us practically?

CLARKE V HURST 1992 (D):

S V CHRETIEN 1981 (AD):

Importance of the case:

Arguments put forth:

Ruling and reasoning in the AD:

The extent of the voluntary intoxication in order for it to be a complete defence:

Intoxication after Chretien:

S V WIID 1990 (AD):

Importance of the case:

Court ruling & reasoning:

Importance of the case:

Burchell’s criticisms of this case:

The approach of Navsa:

Navsa on ‘objectifying the capacity inquiry’:

S V RAMDREASS 2017 (KZD):

Importance of the case:

Facts of the case:

Importance of the case:

Facts of the case:

The appeal of the sentencing:

DPP GAUTENG V PISTORIUS:

Culpable homicide or murder?

Whether the principles of dolus eventualis were correctly applied:

Whether Pistorius had acted in putative private defence?

Further discussion on this case from the textbook:

Burchell’s criticisms of the Pistorius judgment:

Facts of the case:

Importance of the case:

Critical assessment of this case:

The post De Blom Era: