Factual Causation

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

In Minister of Safety and Security v Skosana, the AD discussed the conditio sine qua non test of causation.
Corbett JA in the majority, defined factual causation in terms of whether the negligent act or omission in
question caused or ‘materially contributed’ to the harm in question. An act or omission must pass the
conditio sine qua non test. The minority agreed with the use of the conditio sine qua non test.

S v Daniels: the case without a ratio

In S v Daniels, Jansen JA and Trengove JA held that the preliminary enquiry into factual causation is
made in terms of the sine qua non test.
1. Jansen JA’s approach (concurred in by Van Winsen) was that, by applying the conditio sine qua
non test, the mortal wounds inflicted by the first accused were sufficient to be the factual cause of
death, and on policy grounds, the legal cause as well.
2. However, Trengove JA and Nicholas AJA (obiter dictum as he based his decision on common
purpose) were of the view that this was not sufficient to render the first accused’s conduct both
the legal and factual cause of death.
3. Trengove JA, Nicholas JA and Jansen JA, all recognized that the conditio sine qua non test casts
the causal net too wide, and has to be supplemented by legal causation, based on policy issues.

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

Legal Causation

In R v Loubser 1953 (W): X inflicted a stick wound on Y’s head. Y did not heed his employers advice to go
to hospital and bound his head with dirty rags. He contracted tetanus and died. Rumpff J considered that the
test was whether Y’s conduct was abnormal or unusual in the light of human experience . It was held
that it is not unusual for a person in a rural environment to do what Y did – therefore X had caused Y’s
death.

Crucial Case for Legal Causation

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

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

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

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

Private Defence

In R v Stephen the court insisted that a warning should have been given before the accused fatally stabbed
an intruder in his house at night. The issuing of a warning must be examined in the light of all the
circumstances. It may be unreasonable to expect a person faced with an intruder to call out a warning or
fire a warning shot. 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.

In the civil case of Coetzee v Fourie 2004 (SCA), where X shot a stranger in his driveway in the middle of
the night, the court held that a reasonable person would not have shot without warning, and that there was
time and opportunity to do so.

In R v Stephen 1928 WLD, the accused was sleeping in his bedroom and heard the sound of an intruder. He
jumped from his bed grabbed a butchers knife and, instead of stabbing the guy in the arm as he had
intended, stabbed him in the heart. The court held that because he stabbed the man without warning, and
when there was no immediate danger, he was guilty of culpable homicide.

In S v De Oliveira 1993 (A), the appellant had been convicted in the trial court of one count of murder and
two counts of attempted murder. The appellant lived in a dangerous area with lots of robberies. He was
lying in bed with his wife one day when he saw four men walk past along his driveway towards hid door.
He fired six or seven shots through the window injuring one (who turned out to be his employee) and
killing another. The court held that putative private defence is a question of culpability (not lawfulness). If
an accused genuinely believes he is in danger, but objectively is not, then private defence cannot succeed.
If he kills someone his erroneous belief will not exclude unlawfulness, but may well exclude dolus, in
which case liability based on intention will be excused, and culpable homicide is the worst possibility. The
test for private defence is objective – would a reasonable man in the same position have acted the same
way. Where the accused is mistaken about acting in private defence and kills someone, his action is clearly
unlawful. But his mistake can serve to exclude dolus. The defendant, to his own peril, did not testify. Thus,
whether he was subjectively mistaken has to be inferred from objective factors. And we can only conclude
that he was not subjectively mistaken.

In S v Dougherty, the lines between retaliation and defence became blurred. After the assault of several of
his guests, Dougherty went looking for the assailants. He came across the deceased and another. They
didn’t respond when he asked if they knew anything about the assault, so he pointed the gun at them. One
of them got up and said “You will not use that” and walked towards him. Dougherty fired a warning shot
into the ground, but the deceased continued towards him. He then fired a number of shots at the deceased,
killing him. Dougherty raised the defences of private and putative private defence. The Court held that
Dougherty had acted unreasonably by not aiming a non-fatal shot. However, the court held that he lacked
knowledge of unlawfulness in that he genuinely thought he was about to be attacked, but convicted him of
culpable homicide as his conduct was negligent. Burchell thinks that Dougherty was the author of his own
predicament by retaliating and assuming the role of police. Snyman thinks Dougherty should have been
acquitted for self-defence.

S v Van Wyk – Killing in Defence of Property

In S v Van Wyk 1967 (A), a beleaguered shopkeeper rigged up a shotgun (with police knowledge) which
would be triggered by anyone entering the shop by a certain window. The intruder was expected to be
wounded in the leg. He pinned a notice to the door in English and Afrikaans explaining that the shotgun
had been set up, and entry was at one’s own risk. A man broke in and the shotgun went off, killing him.
Van Wyk was acquitted on the basis of private defence. The Minister then put the following two questions
to the AD:
1. Can one rely on private defence where one kills in defence of property?
2. If so, were the bounds of private defence exceeded in S v Van Wyk?

The Majority held;

1. That deadly force could not be excluded from the principle (as ‘necessary force’ was allowed).
2. The Proportionality cannot form basis for private defence.
3. Killing is not always unjustified to prevent theft and is analogous to s42 and s49 of the Criminal
Procedure Act which allow a private citizen to use deadly force in an arrest.
4. The defender’s actions must be actually necessary to do so (i.e. where he can likely easily recover
the property, killing will be considered unnecessary).
 5. In this case, there was actually threatening harm which Van Wyk could expect with reasonable
certainty and is thus a case of necessary defence (with unusual circumstances).

The Minority held;

1. There is a problem where there is actual intent to kill.
2. A person can invoke private defence where he kills or injures another in defence of property if the
circumstances justify doing so.
3. However, placing a gun-trap presents particular problems,
a. there is no immediate threat (only an expectation) when gun is placed
b. the ‘defender’ is absent when the action is undertaken
c. the action is taken without any decision as to whether it is necessary

In R v Canestra 1951 (A) the accused carried on extensive fishing operations and was charged with a
statutory offence for catching over 100 undersize fish. The court held that because the only necessity was
economic, the law did not recognize this form of necessity. If he can’t avoid the law without giving up
fishing, then he must choose another occupation.

In the English case of R v Dudley and Stephens 1884, two sailors were charged with murdering a cabin boy.
They were shipwrecked and cast adrift in an open boat for eighteen days, seven of them without food. The
cabin boy appeared to be on the point of dying and looked tasty so they killed him for food to save their
own lives. Their defence of necessity failed because the court held that one may not kill another out of
necessity.

In R v Werner 1947 (A): German prisoners of war murdered a fellow prisoner on the instructions of a
German officer hiding in the camp. It was held that the killing of an innocent person is never justifiable by
compulsion or necessity.

The same view was expressed in S v Bradbury 1967 (A): the alleged compulsion took the form of threats of
vengeance from a criminal gang. B, a former member was instructed to kill W. B only agreed because of
threats against him and his family. He evaded killing W for some time, until the gang sent P (a professional
killer) to murder W instead. B was instructed to assist P, which he did by driving the getaway car. B was
found guilty of murder in the trial court. An appeal against this was rejected in the Appellate Division – it
was held that as a general proposition, a man who becomes a member of a gang voluntarily cannot rely on
compulsion as a defence.

In S v Goliath 1972 (A), X and Y were walking together when they came upon Z. Y accosted Z and then
stabbed him in the chest. He ordered X to tie him up, threatening him with death if he didn’t. X then tied
him up and Y stabbed Z another 12 times. The trial court found Y guilty of murder, and acquitted X of
being an accomplice on the basis of necessity. On appeal, the majority held that there were many doubts as
to the correctness of that view that necessity could never justify the killing of innocents. The court chose
not to decide whether compulsion excludes unlawfulness or fault, however it held that necessity can
constitute a complete defence against a charge of murder. Acquittal is justified only if the compulsion is so
strong that a reasonable man could not have been expected to resist it. It will depend heavily on the factual
circumstances of each case. The minority however held that compulsion cannot justify the killing of
innocent persons. The minority held that compulsion is a factor affecting mens rea rather than
unlawfulness, and thus compulsion can only excuse killing (not make it lawful) if it were of a nature that
the perpetrator lacking a blameworthy state of mind.
Disciplinary Chastisement

In S v Williams 1995 (CC), the court held that corporal punishment in terms of s294 of Criminal Procedure
Act was unconstitutional as it was cruel, inhumane and degrading, and impacted on the dignity of prisoners.

In Christian Education South Africa v Minister of Education 2000 (CC) the Constitutional Court rejected
the claim that legislation banning corporal punishment in private schools was unconstitutional. The court
held that even if it were assumed that the parents’ religious rights were limited, it was a justifiable
limitation. Private schools operate in the public domain and it is not unreasonable to adapt to non-
discriminatory laws.

Consent

In S v Nyalungu, the court held that where a person has commits the crime of rape, knowing that he is
HIV-positive, he is guilty of attempted murder and rape. In this case of rape, he had threatened the
complainant with a knife. In a case where the lack of consent had not been as clear as this, it is less likely
that a charge of attempted murder would succeed.

Insanity

In the Canadian case of R v Chaulk, two accused, aged 15 and 16 robbed a house and bludgeoned the
owner to death. Expert evidence was led that they suffered from a paranoid psychosis. They knew the law,
but believed they were above it, because they had the power to rule the world if they killed. The Supreme
Court held that the defence of insanity should be available, because they did not appreciate that the conduct
was morally wrong. (Judged objectively by society’s standards).

Intoxication

In S v Chretien, the accused became very intoxicated at a party and ultimately drove his car into a crowd of
people, killing one and injuring five. On charges of murder and attempted murder, the court found the
accused guilty of culpable homicide, but acquitted him of attempted murder and even of common assault.
The court a quo accepted that, in his intoxicated state, Chretien thought that people would move out of the
way and thus there was doubt as to whether he had the requisite intention for common assault. The court
however reserved the question as to whether it was correct in holding that Chretien could not be convicted
of common assault where the necessary intention for the offence had been influenced by the voluntary
consumption of alcohol. In the Appellate Division, the court held that common assault requires intention to
assault, and if this intention is lacking due to voluntary intoxication, there can be no conviction (Chretien
didn’t have the requisite intention and thus wasn’t guilty of assault). The court also emphasised the
importance of the degree of the accused’s intoxication. A high degree of evidence would be required to
show this (though only to lay a foundation for the defence, not to the extent of constituting a reverse onus).

Comment
In short, as far as the law is concerned, Chretien’s case has the result that voluntary intoxication can now
affect criminal liability in the same way, and to the same extent, as youth, insanity, involuntary intoxication
and provocation. Intoxication of a sufficient degree can, therefore, serve to exclude (a) voluntariness of
conduct, (b) criminal capacity or (c) intention.
Provocation

In S v Eadie, the appellant was convicted of murder due to killing a person in circumstances of ‘road rage’.
The deceased had driven behind him and flashed his headlights and generally agitated him. At the traffic
lights, Eadie got out of his car and beat the deceased to death with a hockey stick. Eadie raised the defence
of non-pathological incapacity (from a combination of emotional stress, provocation and intoxication).
Although he conceded that he could distinguish between right and wrong (i.e. cognitive capacity), he
claimed that he was unable to act in accordance with that appreciation (i.e. conative incapacity). The SCA
upheld the conviction of the High Court. The court held that the defence of provocation was only
permissible in cases of automatism. This essentially conflates the inquiries into ‘conative capacity’ and
‘voluntariness of conduct’ and dramatically reduces the scope for the defence of ‘provocation’.

In S v Engelbrecht, the majority found that the accused’s conduct had not reached the standard of a
reasonable person. However Satchwell J, for the minority, held that the accused had been subjected to a
pattern of abuse such that further domestic violence was inevitable or imminent. Therefore, the
accused’s conduct was found to have been reasonably necessary or proportionate given the circumstances.

Intention

Dolus Indirectus
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.

Dolus Eventualis
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.

Motive Irrelevant to 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.
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).

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.

Negligence

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.

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.