Criminal Law – UKZN

Introduction.

Purpose of criminal law

a. Protect individuals and their property from harm by protection human and civil rights.
b. To preserve order in society, collective welfare, and maintenance of the government
c. Punish, sentence, incapacitation of, deter, reform offenders.
d. Enforce moral values – the scope of this purpose may be limited.
The law has a significant power to limit the rights of citizens for the right reasons. The
individual or the accused may only be held liable if he/she has freely chosen to commit an
unlawful act may that person be held criminally liable. If the person is not blameworthy then
the society is not able to hold the person liable.
Society does not want to limit the rights of people unjustifiably.
The law should not seek to deprive citizens of individual autonomy without good reason. The
law seeks to respect the rights of individuals. Criminal law forces people to submit to it’s
demands or else the individual may be criminally liable. The law restricts the aims of a
person and prevent the person from pursuing those aims which are important to that person.
Criminal law imposes the legislature’s view of how people should live.
If we say that everyone has the right to exercise their own rights without restraint, then one
must question how the criminal law restricts the rights of individuals.
Individual freedom is indispensable in a constitutional democracy therefore there must be a
good reason before the reach of criminal law is extended.
There does exist cases where the law does enforce morality through the criminal law. For
example:
a. The right to privacy – Private drug use (Prince case)
b. Right to sex?? – Section 14
c. Right to religious freedom – Prince and Section 15
d. Right to chastisement
e. Right to choose a profession freely – Jordan and Section 22
There are conflicting cases which may uphold something seemingly immoral –
a. English cases of Brown – assault conviction for acts done in private by a group of
consenting adults. They consented to been harmed but the English courts nevertheless
convicted the accused for assault.
b. Wilson assault conviction set aside when husband branded his initials on the wife’s
buttocks with her consent. There was initially a conviction, but this was overturned on
appeal.
The problem with enforcing morality is that the law must also protect the individual’s
autonomy. The law should not deprive the individual’s autonomy without good reason. There
was inconsistency in the above case.

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The Mill, Hart and Devlin debate.
1. Mill: the purpose of harming another can be rightfully exercised in order to
prevent such a person from harming others.
2. Hart: The law may seem paternalistic, and it also protects a person from doing
something which is not good for that person, even though that person wants to do
it.
3. Devlin: Society is held together by political structure and by shared morality.
Society has a right to protect its political integrity, ideological integrity. Certain
acts which are extremely gross which need to be precluded from been an
occurrence. We are held together by a common morality and not merely a political
structure.

Criminal law is an expression of morality.

Criminal law sets the standards of which the society deems to be wrong or harmful. These
values which the society view in high esteem need to be constitutionally acceptable values.
Criminal law is based upon morality and this is applied via the Constitution.
It must be determined which values are important, to the extent that those values need to be
protected by the criminal law.
The criminal law must be specific regarding those standards.
One question frequently considered is to what extent must the criminal law be applied as
opposed to other fields of law for the resolution of disputes.
One of the issues brought before the law reform commission was that whether or not a person
should be criminally liable for the intentional transmission of HIV. The moment we use the
criminal law we are limiting the rights of people.
It must be ascertained whether criminal law must be applied or some other field of law must
be applied to a situation for that situation to be resolved. Another important issue in respect
of the criminal law is the way in which crimes are defined. In order for criminal liability to
exist then the state must prove that all of the elements of the crime are satisfied.
There are many instances in which the crime needs to be specifically detailed and formulated
so that the society knows which conduct to avoid and conduct which is acceptable.

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There are rules for constructing criminal liability. The prosecution must prove beyond
reasonable doubt that the accused’s conduct satisfies all the elements of criminal liability.
The latin maxim actus non facit reum nisi mens sit rea, ‘an act does not make a man guilty of
a crime unless his mind is also guilty’
The above portrays two important aspects of criminal liability. The act and culpability.

Topic 1 Elements of Liability

Actus Reus
It is the external manifestation of the accused’s mental state in the form of conduct. Actus
Reus is determined objectively, there is no reference made, when determining if the act is
unlawful, to the accused’s state of mind, mental, psychological, or emotional state when
determining liability.
Mens Rea is determined subjectively.
Actus Reus and Mens Rea must exist at the same time in order for criminal liability to exist,
these elements must exist contemporaneously. This was held in the case of S v Masilela 1968
(2) SA 558 (A)
Mens Rea is determined after the recognition that a Actus reus was factually unlawful. One
does not have to determine mens rea if there was no unlawful act.
There is an exception to in respect of mens rea such that when determining negligence, the
determination is completed through an objective test and not a subjective test. This is the only
exception. Generally, when the determination is mens rea is in question, this is usually a
subjective test.
The determination of the accused’s liability or subjective elements of liability does not
involve when and which conduct is criminal, what makes a person a criminal, the detection of
the commission of a crime, the discretion to prosecute, the criminal trial, sentencing and
international criminal law.
These two elements of criminal liability {actus reus and mens rea} must exist
contemporaneously.
The elements of criminal liability must be done in a specific order. The first element to
consider it the Actus Reus.
Actus Reus
This refers to voluntary unlawful human conduct.
a. The conduct may be in the form of the commission of a act (positive act) or an
omission to act positively. In respect of omissions is no general duty to act.
However, criminal liability may exist for a failure to act positively depending
on the legal convictions of the community.
b. Conduct must be human or have a human element.
c. Conduct must be voluntary.

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 i. Conduct subject to the control of the human intellect or will. If the act
is involuntary then it may be said that something happened to the
accused rather than the accused doing something.
 Circumstances which negate volition are known as automatism. In this
situation the persons acts involuntary. Examples include: (e.g. sleep,
hypnosis, concussion, heavy intoxication, provocation/emotional
stress)
ii. Two types of automatism exist. Sane and insane automatism. Sane
automatism is not due to a mental illness and they may be acquitted for
the crime. The state needs to prove beyond reasonable doubt that the
accused was acting voluntarily. When the cause of the involuntary act
was a mental illness then the person claiming the mental illness must
prove on a balance or probabilities that the accused was acting
involuntarily due to a mental illness. If an accused successfully relies
on sane automatism, then that person shall be acquitted for the crime
but if an accused successfully relies on the defence of insane
automatism then the accused must be institutionalized in terms of s78
of the Criminal Procedure Act.
iii. Conduct must be unlawful – this conduct must be contrary to the law.
The conduct must fit into the definition of a crime for it to be unlawful,
even if it is prima facie unlawful it may be lawful under certain
circumstances. These are known as grounds of justification. There are
certain grounds of justification which exclude unlawfulness. This
conduct justifies prima facie unlawful conduct. In order to determine if
a justification ground an objective approach must be followed. The
state of mind of the accused is not of consideration. Unlawfulness is
tested objectively. One must consider the nature of the accused’s
conduct.

d. Grounds of justification.
i. Private defence. This is an action against unlawful aggression, and it is
determined objectively.
The courts have questioned whether it is justified to kill in the defence
of one’s property. S v Van Wyk.
ii. Necessity – a person may rely on this ground of justification if there is
an unlawful attack on the person or if there is no unlawful attack. A
person may cause harm to the interests of an innocent third party in
order to protect their own interests.
The case of S v Goliath is of importance because it questioned the idea
of killing an innocent party to protect one’s own life.
Other important cases are Dudley, Stephens and William Brown.
iii. Consent – the maxim volenti non fit injuria states that the one who
consents cannot claim injury. One may consent to physical injury in
sporting events but one cannot give consent to been killed direct or

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 indirectly. A person may consent to physical harm during the
performance of a medical procedure.
A person may consent to their property been taken by another, and this
will negate the unlawfulness element on the part of the person
assuming control of the thing, and who is been accused of theft.
iv. Other grounds of justification include, superior order, impossibility,
negotiorum gestio, public authority. Entrapment and de minimis non
curat lex are non-justification grounds. Chastisement is not a ground
for justification in South African law and it was held to be
unconstitutional. Chastisement is not a ground a justification for
parents to chastise their children as this was declared unconstitutional.
Antecedent Liability.
The person is responsible for the harmful act itself and those acts which occur prior to the
harmful act. Example driving through bees knowing that a person might be stung. The losing
control of the car causing an accident, thereby causing harm. The question is whether the
person is liable, merely investigating the moment the harm occurred would result in the
accused not been criminally liable because she acted as an automaton or involuntarily. One
does not only consider the moment the harm occurred. The events which occurred prior to the
harm occurring must be considered as well.
A typical example of the operation of antecedent liability is called the actio libera in causa,
which functions in the context of intoxication. This occurs when a person requires courage to
perform some unlawful act, and consumes an intoxicant in order to obtain this courage. The
consumption of the intoxicant does not negate the unlawfulness element because the person
consumed the alcohol with the sole purpose of performing an unlawful act and to escape
liability.
In respect of the defence of bodily movements performed due to the condition of automatism
which does not result in criminal liability, if the accused knows that he has this condition
which may result in him not having control of his bodily movements but still proceeds to
drive a vehicle or commit any other actions which might endanger another then the accused
does not have any grounds for the defence of sane automatism. The accused may be
criminally liable with culpability in the form of negligence.
In the case of Victor 1943 TPD 77 the accused was charged with negligent driving because he
had an epileptic fit and he had insufficient reason to believe that he would not suffer one on
that day as he suffered epileptic fits for the past 13 years.
This occurs when a person has knowledge that their bodily movements will be uncontrollable
if they engage in certain activities but nevertheless engages in such activities then the accused
may be criminally liable and there will not be a defence of sane automatism which can be
relied on successfully. The accused fulfills the conditions of liability regarding the
commission or causing of the actual consequence, but also those actions preceding the
causing of the harmful consequence.
One must question whether the accused had knowledge before the causing of the harmful
consequence regarding the outcome if they had to engage in a certain type of action. It must

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be determined if the person acted with the requisite mens rea and conduct before that harm
occurred.
Causation.
There must be a link between the conduct of the accused and the harm caused by the accused.
This is particularly important for consequence crimes or materially defined crimes such as
murder and culpable homicide.
Other types of crimes are circumstance crimes or formally defined crimes. Examples include
is drunk driving and drug possession. There does not need to be a certain consequence which
occurs. The act itself is worthy of holding a person accountable for the criminal action,
thereby confirming the existence of criminal liability.
This is a determination of whether the person causes the consequence. For crimes of murder
and culpable homicide causation will always be a potential issue. The factual test questions
whether but for the accused’s conduct would the harmful consequence occurred. In order for
criminal liability to exist the answer to this question must always be in the negative.
The second determination in respect of causation is legal causation. This questions whether
there was a break in the causal chain of events between the conduct causing the harm and the
harm itself. There must be a sufficiently close nexus because the conduct which caused the
harm and the harm itself. Without such causal connection then there can be no legal causation
and thus criminal liability does is absent for the element of causation.
Mens Rea.
Once it has been determined that the person did act unlawfully then one must consider the
subjective state of mind of the accused.
There are certain exceptions when a person may be held criminally liable even with the
absence of a guilty mind.
It is necessary to determine the accused’s state of mind in order to determine criminal
liability.
If it is determined that the person did not act voluntarily or did not act unlawfully then there
would be no need to determine mens rea.
To determine mens rea, it requires an investigation into the mental state or the accused, their
perception of the facts. This is a subjective inquisition. The basis for liability must be
personal.
There can never be criminal liability without actus reas. There are statutory exceptions which
exclude mens reas.
Versari in re illicita – Does not exist anymore
The above maxim holds that one a person is responsible for all the consequences flowing
from their unlawful conduct even if a person does not have the mens rea.

There are two components of mens rea

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 a. Criminal capacity or imputability
b. Fault in the form of intention or negligence

a. Criminal capacity
A person lacks criminal capacity if they cannot distinguish between right and wrong and they
are unable to act in accordance with such distinction.
Factors which negate mens rea are mental illness, intoxication, age, provocation or emotional
stress.
Mental illness has the propensity to make a court of law commit a person to be
institutionalized in terms of s78 of the Constitution.
Non-pathological incapacitation. This does not refer to mental illness.
In respect of intoxication the case of Chretien changed the position of the law and resulted in
a subsequent statutory legislation been promulgated.
Provocation and emotional stress – this was not a defence in the past but this position was
changed and it may be a complete defence depending on the factors of the case of Eadie.
The intention element must relate to the facts and the person must know that the shooting of
another human being is unlawful. If a person does not know that the act is unlawful then this
would exclude unlawfulness.
b. The intention element must relate to the facts and the law. The intention of the person
must be to commit the action and the person must be aware that such conduct is also
unlawful. A material mistake regarding the facts or the law excludes intention.
There is intention in the form of dolus eventualis if a person foresees the possibility
that the event might occur if they continue to engage in certain conduct.
A mistake of fact is a mistake that is relevant to an essential element of the crime.
Error in objecto – it is a true mistake of fact which negates intention. If an accused thought
he was shooting a buck but it was a man he had no intention to kill that human being,
therefore he cannot be guilty or murder.
An apparent mistake does not negate the intention to kill. If a accused aims to shoot and kill
one man but instead shoots another person then the accused is guilty of the crime of murder
because he had the intention to kill.
Aberratio ictus – going astray of the blow. If the accused intends killing a person but misses
that person and hits and kills the victim then the liability for the death of the victim depends
upon the the fault regarding c. This would depend on whether the person foresaw the
possibility of missing the initial target and hitting the victim. If a person does not have this
foresight then a person may be held for culpable homicide.
Mistake of law – ignorance of the law is no excuse. Bona fide ignorance of the law is
excusable and this negates intention. A person cannot be held liable for the intention if they
did not know what they was doing was unlawful.

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Culpa or negligence does not usually occur as a form of mens rea, especially in respect of
common law crimes. Culpable homicide is the only example. The test is against the standards
of a reasonable person. It questions whether a reasonable person in the position of the
accused in the same circumstance as the accused would have been able to avoid the harm
from been necessitated. This is an objective test.
The notion of criminal liability is based upon the notion of free will. This is the basis for
blameworthiness.
For examples. Intoxication may be tested to the extent that was it enough to exclude volition
and is so thereby excluding actus reus, was the intoxication to the extent that criminal
capacity was excluded, and if so no mens rea will be present or was it enough to exclude
intention, and is so no fault therefore no mens rea.
Intoxication will not exclude negligence because a reasonable person does drink but does not
get drunk.
If there is no act then there is no reason to question unlawfulness, capacity and intent. It
would be illogical to say that the accused escapes liability because he lacked the intention to
assault. This argument presupposes that there was a voluntary act on the part of the accused,
which is illogical.
Participation
A perpetrator is a person who fulfils the definition of a crime.
An accomplice does not fulfil the definition of a crime but intentionally assists the
perpetrator.
An accessory after the fact assists others to escape liability after the completion of the crime.
The doctrine of common purpose states that when a number of persons are acting with
common purpose the acts of each is imputed to the others. A particular accused may not
strike the fatal blow but may still be criminally liable and found guilty of murder on the basis
of common purpose. The governing principle is active association.
Inchoate offences
Attempt, conspiracy and incitement.
Each of these three crimes have their own definition.
There is a very important distinction between preparation and execution.
Corporate Criminal liability.

S 332 Criminal Procedure Act 51/1977 – act of director/servant deemed to be act of

corporation itself

Legality
Criminal law must be applied with respect for the civil and political rights and freedoms of
the individual.

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The courts cannot invent or create new crime. The legislature only has the authority to create
new crime by exercising its legislative power.

We cannot divorce the criminal liability from the context in which it operates. The principle
of legality works within the context with which the criminal law operates for the political and
individual rights of the citizens.
There is one essential concern. In the absence of a predetermined law which threatens the
conduct in question then there cannot be criminal liability. This is known as the application of
the nullum crimen sine lege (no crime without a pre-existing law) principle. The principle
hold that in the absence of predetermined law threatening the conduct in question, there can
be no criminal liability.

Crimes and their punishments must be created by a defined law which are formulated
properly to identify a crime.
Crimes and their punishments must be formulated by properly made law which explicitly
state that certain conduct is a crime. Crimes cannot be vague in their creation such that it does
not explicitly state when a person can be held liable for certain conduct.
It would not be fair to be liable for a crime if such conduct was not defined as a crime.
There must be a law created by the legislature which explicitly defined it as a crime.
The courts cannot invent crimes and only the legislature may create law. Each branch of
government has its own role, that is, the executive, the legislature and the judiciary.
There cannot be a situation whereby judges make or create the law.
Legislature is a composition democratically elected representatives who create the law.
The judiciary is responsible for the interpretation of the law.
There were instances in the past where judges intervened and created law. This has happened
when there is a gap in the law and the legislature has not explicitly stated that certain conduct
is criminal, and the courts intervened and held that this conduct has to be criminal. The court
found that a person could not escape liability for that conduct because it is a crime.

The courts have established themselves as the guardian or good morals. In south the leading
case is the R v Marais (1889) 6 SC 367 – the courts as the guardian of good morals, adapted
the law of public indecency, instead of questioning whether the act was a crime in the
common law, when the accused exposed himself to children.

This is an infringement of human rights because a person is been held liable for something
that is not a crime.

In the case of Shaw v DPP [1961] 2 All ER 446 (HL) the accused created a directory of the
contact details of prostitutes. The house of lords created the crime of conspiracy to corrupt
public morals and the accused was convicted. The court held that this conduct should be a
crime.

In the case of S v Solomon 1973 (4) SA 644 ©, the court refused to resuscitate the crime of
conflagration.

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The courts are unwilling to extend the ambit of common law crimes Von Molendorff case
(1989 (4) 1028 (A)) where court was not prepared to extend crime of extortion to include
non-pecuniary benefit; extortion involves the threat and a benefit, such that a person may be
threatened by another for money. The benefit must always be measurable in terms of money.
The policemen locked up people unlawfully and stated that they will not release them unless
they had signed an affidavit stating the policemen caused no harm to them while in the
custody of the police. They were charged with blackmail, but the benefit was not measurable
in terms of money. The court held that they are not willing to extend the crime of extortion to
cases where the benefit cannot be measured in terms of money. After this case, the legislation
did create new law so that extortion may be committed if the benefit sought was of a non-
pecuniary nature. This is the correct procedure because the legislature is responsible for the
enactment of new law.

S v Mintoor (1996 (1) SACR 514 (C)) where court refused to extend crime of theft to include
electricity; but see S v Ndebele 2012 (1) SACR 245 (GSJ). The reason why courts do not
want to extend the ambit of crimes is because if this was to occur then a person would be
accused of a crime for conduct engaged therewith which was not previously recognized as a
crime. To extend a crime would be an infringement of the principle of legality. The crime of
theft was not defined in terms of incorporeal things. Electricity is not something that can be
seen or felt.

Courts are unwilling to extend the ambit of statutory crimes. S v Smith (1973 (3) SA 945 (O))
– refusal to extend prohibition on photographic obscene material to photostatic obscene
material. The court held that if the legislature wanted to prohibit the possession of
pornographic photocopies then this should have explicitly stated.

In statutory crimes which lack the element of criminalization, such that conduct described
shall be an offence. Statutory crimes must clearly state that such conduct is a crime, it is not
enough to merely state that such conduct is unlawful. Example: talking on your cellphone
while driving is unlawful, shall not be regarded as a crime unless it adds, therefore it is an
offence and is punishable. In the case of R v Forlee (1917 TPD 52, prohibition against
trading in opium, but no punishment prescribed) held that where the legislature’s intention is
clear, then the conduct is punishable at the discretion of the judge. But principle of legality
requires that statutory offences be created in express terms. The courts cannot extend of
crime crimes.

S35(3)(l) and (n):

Everyone who is arrested for allegedly committing an offence has the right

(l) not to be convicted for an act or omission that was not an offence either under national or
international law at the time it was committed or omitted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing

Application of the nullum crimen sine lege (no crime without a pre-existing law) principle:

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S v Masiya 2007 (5) SA 30 (CC)
The accused had anally penetrated a young girl but under the existing common law at the
time could not be for rape and could only be held for indecent assault. Rape was strictly
penetration by a male penis into a female vagina, anal penetration could not be rape. The
legislature then extended the crime of rape to include anal penetration. The magistrate held
that this was rape, and held the accused was guilty. The high court and the Constitutional
court held that anal penetration was rape. At the time of this action was undertaken by the
accused, the conduct was not regarded as rape, and the court could not merely extend the
crime of rape, as this was a function of the legislature. If the court held that anal penetration
was rape for the accused in Masiya then this would be a contravention of the principle of
legality, therefore the accused in this case was found guilty of indecent assault.

S v Mshumpa and another 2008 (1) SACR 126 €

The father and the mother, pregnant with a girl, who was about to be born, visited a
gynaecologist. When the parents went for a check-up to the doctor regarding the unborn, and
the mother was at 38 weeks pregnant, the birth was imminent, and there was nothing to
hinder the birth of the child. When the parents went to the parking lot, a man, Mr Mshumpa
forced the couple to drive to a deserted field where he shot the father in the shoulder and shot
the mother into the stomach, thereby shooting the foetus. The man robbed the couple and
disappeared. The baby was killed. Upon further investigation, it was discovered that Mr
Mshumpa was working together with the father and they planned to shoot the mother in the
stomach to abort the foetus because the father did not want to be committed to the mother in
pregnancy. The father and Mr Mshumpa were charged with murder. The basis for this was
that the child was fully formed. There was no other development in terms of the pregnancy,
which was to be necessitated in order for the unborn foetus to be born alive. The states
argument was that it was the same as the accused shooting the child on the delivery table. The
court held, quoting the Masiya case., that no matter how heinous a crime, they could not be
convicted or murder because murder can only be perpetrated against people who are born
alive. It does not matter how ready the unborn was to be born. The court was not willing to
encompass conduct that was not within the definition of the crime.
S v Ndebele and others 2012 (1) SACR 245 (GSJ)
The accused were charged with the theft of electricity. This conduct was legislated for in
another piece of legislation which was repealed at the time of the commission of the act. The
legislation did not replace that piece of legislation and there was a gap in the law. The court
held that there must be some way to deal with this situation. There was no offence relating to
the theft of electricity. The court decided to extend the crime of theft to include that of the
theft of electricity. This was an issue in respect the principle of legality because a person
could not be convicted of a crime if at the time of the commission of the act, such conduct
was not regarded as a crime in the legal system. The crime can be extended for future cases
but not for the case in question.

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In S v Smit 2007 (2) SACR 335 (T) the accused was charged with 12 counts of contravening
s 27(5)(a) of the South African National Roads Agency Limited and National Roads Act 7 of
1998, and 12 counts of contravening s 58(1) of the National Road Traffic Act 93 of 1996.
The charges arose out of the following facts: the accused disputed that the toll road on the N4
between SA and Mozambique had been validly declared (as required in the legislation). He
therefore, on 12 occasions, refused to pay the toll fees when he drove through the toll road
(which gave rise to the charges of contravening Act 7 of 1998) and each time ignored a red
traffic light in doing so (which gave rise to the charges under the National Road Traffic Act).
It was held that the State had failed to prove that the toll road had validly been declared, or
that the road was a toll road under Act 7 of 1998. The accused was therefore acquitted of
these charges. However, with regard to the charges under the National Road Traffic Act, the
accused was convicted, as the traffic signs at the toll plaza had been lawfully set up.

Explain this result in terms of the principle of legality.

If the toll road had not been validly established, or if the state failed to prove that a toll road
had been validly established then the accused could not be validly held to be liable for the
contravention of the above mention legislation. If the rules of setting up the toll road had not
been followed then he cannot be held liable for not paying the amounts because this would be
an infringement of the principle of legality because one can only be held liable for a crime if
there was a pre-existing law which stipulated that such conduct was a crime. The toll was not
setup up according to the act therefore it was not a valid toll. There must be a set of pre-
existing rules in order for a crime to exist. The toll road was not setup according to clearly
defined rules therefore no crime was committed. When a person drove through a toll road that
was not properly setup there was no crime committed because it was not setup according to
the rule and a crime cannot be committed if there is no pre-existing law defined such conduct
as a crime. Driving through a red traffic light will bring about criminal liability because the
National Road Traffic Act was validly enacted.
Non-Pathological criminal incapacity relating to provocation or emotional stress – an
overview of the developments in South African Law. - Article
S v Eadie 2002 (1) SACR 663 (SCA)
Abstract.
The defence of non-pathological incapacity holds that a person should not be held liable for
crimes committed unless he or she is blameworthy. This is in accordance with the Bill of
Rights, in particular, the right to dignity, and freedom and security of a person. The defence
of provocation and emotional stress as a precursor to non-pathological incapacity as a
defence has raised issues regarding its availability as a defence.

A person must act voluntarily when performing the unlawful act(actus reus) in order to be
criminally liable. This must be accompanied with a blameworthy state of mind, that is, mens
rea.

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These two elements must exist contemporaneously. The onus of proof is beyond reasonable
doubt. This means that there must be no other explanation or reasonably acceptable version
of except that the accused is guilty and that all the elements of criminal liability have been
satisfied.

The requirements for the unlawful act and the blameworthy state of mind are different.

The unlawful act requires that there be an act{commission or omission}, the act must
voluntary{subject to the control of ones mind} and unlawful.

In respect of materially defined crimes such as murder, are defined in terms of the unlawful
consequence which arises from the unlawful conduct.

The act must have a sufficient close causal nexus to the harmful consequence.

The above tests are all objective.

The act must be voluntary. If the act is unvoluntary then it may stem from a pathological
incapacity or a mental illness, or it may stem from a non-pathological incapacity, which
results from external causes and not from a mental illness.

There is a distinction between a sane automatism and insane automatism.

The test for a blameworthy state of mind is subjective, with the exception of the test for
negligence which is subjective.

The courts must determine if the accused had the capacity to commit a crime at the time of
the engagement in unlawful conduct. The court must then inquire into whether the accused
had to necessary intention to commit a crime. In the case of murder if the intention cannot be
proved then there is an alternative crime which is based of negligence, namely, culpable
homicide.

Subjectivity, objectivity, policy and proof.

Up to the age of 60 a person could be held liable for the intentional killing if the death was
regarded as natural and probable cause for his actions. The result of this is that the accused
may be held liable for the death caused by his conduct even though he did not foresee the
possibility of death occurring. This is an unjust approach because it is incorrect for a person
to be held liable if they did not have the necessary intention to commit murder. This resulted
in the test for intention developing into one that is purely subjective. The court may only find
a person liable for murder if the person subjectively intended to unlawfully kill a the victim.

Crucial questions – Antecedent liability and the principle of legality.

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In respect of antecedent liability, if the accused lacked criminal liability at the time the harm
occurred, he or she may have had the requisite element present at an earlier stage in their
conduct. The court may aim to ascertain this element and then convict the accused. Whilst
engaging in conduct which the accused knows will lead to him or her act involuntary, the
accused is acting voluntarily. This voluntariness is sufficient to fulfil the requirement of in a
two stage approach, which considers the acts prior the act which caused the harm as been the
act that was voluntary.

A common operation of antecedent liability is called actio libera in causa, which operates in
the context of intoxication.

For the purposes of legality, the focus is upon the principle of justice and fairness. The
principle of legality has become complex in respect of the common law crimes, which were
required to be extended to adjust to new situations in current society. These ideas are set out
in s35(3)(l) of) the Constitution, which depicts the nullum crimen sine lege rule, i.e. there can
be no crime without a pre-existing law. The crime of theft was extended to include the theft
of money on the form of credit. In the case of Masiya the accused could not be held liable for
the crime which the court extended in that case, the accused could not be liable because his
conduct was not indicated to be a crime by the law.

The Ndebele case erred in this regard. In the case of Mshumpa the court held that, despite the
fact that there exists a strong argument to expand a crime, the court may not create a crime,
and this is the function of the legislature.

Nullum crimen sine lege holds that no person can be convicted of a crime unless the conduct
in which he or she engages is considered as a crime, or as in the case of Masiya was not the
crime in question. The accused committed a crime which, at the time, was considered to be
indecent assault, and not rape. Only future eventualities of the conduct of the accused in the
case of Masiya could be considered as rape. The accused in Masiya could not be convicted of
rape.

Topic 2 The Act – Actus Reus

a. Conduct
The conduct element may be fulfilled by a commission of a positive act of an omission or a
failure to act positively. Thoughts are not punishable and there must be an outward
manifestation of the accused’s thoughts in the form of an act. A positive act means doing
something as opposed to that of an omission.
Mere thoughts are not punishable.
The general rule is that the person is not under a legal duty to protect another person from
harm, even though it may appear that he is morally obliged to do so. There must be a legal
obligations which require the accused to act. There person must be in a situation in which the

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person who has a legal duty to act, has the opportunity to act positively but fails to do so,
thereby resulting in criminal liability for their failure to act positively.
If the accused has a legal duty to endure the danger or to act positively then the accused may
be held liable. These exceptions to the rule stem from the legal convictions of the community.
The legal convictions of the community should not be utilised without restraint such that it
creates new duties or extends existing duties, such that it contravenes the principle of legality.
This is an individualistic approach. Generally, there is no duty to act outside of that which a
person is legally required to do. Not every person is endowed with the quality or heroism,
therefore a person is under no obligation to endure danger if they are not legally obliged to
endure such danger. Sometimes very little is required to help another.
Kitty Jeneviv – attacked in a parking lot and was killed. Only one person contacted to police.
There was no requirement for the bystanders to act positively.
Pope v State – USA case. Pope took in a mother and a three year old. They lived with Pope
for a week. The young mother was mentally ill and she claimed that satan was in the baby
body and she savagely attacked the baby. Pope was present throughout the entire act and she
did not call any authorities. Pope went to church with the lady and the baby died. There was
no requirement on Pope to do anything.
There is no legal duty to protect another person from harm unless there is a legal obligation to
protect another from harm.

Instances when there is a legal duty to act positively.

These are based upon the legal convictions to the community. There are certain situations in
which the law has stated that it is necessary to act. These situations have arisen on the basis
of community values.
One cannot simply add in new duties because this would be a problem in respect of the
principle of legality. New duties, that did not exist before the commission of the act or
omission, cannot be imposed on persons because this would violate the legality principle.
Prior conduct
A person who has, through their own conduct, created a potentially dangerous situation then
he or she has a legal duty to prevent that danger from manifesting.
In the case of Miller [1983] 1 All ER 978 (HL) The accused was squatting in the house of
another when the accused lit a cigarette and fell of the sleep, this action allowed the cigarette
to fall on the mattress resulting in a fire. The accused did nothing to extinguish the fire upon
waking up and he merely moved to another room to continue sleeping. It was clear that the
mattress was about to burn. The house caught alight and the accused was convicted or arson.
The accused did not do anything positive to set the house on fire. However, he had created a
dangerous situation through his own conduct, and as a result of that he was held liable.
In the case of Fagan [1968] 3 All ER 442 (DC) the accused was directed to park his car
somewhere else. When instructed to do so by a police officer, the accused parked the vehicle

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on the police officer’s foot. When the accused was requested to move it again, he refused. He
parked accidently on the police officers foot, and in doing so he created a potentially
dangerous situation. He was then under a legal duty to do something about it by moving the
car. The accused created a dangerous situation, and he has a duty to act positively. This
resulted in an assault conviction.
Scenario: A farmer seriously assaults a teenage boy who he suspects of stealing his wallet.
Although he recognizes that the boy is badly injured, he does not report the incident to the
police, and does not seek medical attention for the boy. The boy dies as a result of the
injuries. It is not clear whether the farmer intended to kill the boy when he assaulted him.
Nevertheless, the farmer is found guilty of murder. If the farmer did not kill the boy when he
assaulted him, and did not intend to kill him when he hits him, then why the murder
conviction?
A farmer assaulted a teenage boy. The teenage boy was suspect by the farmer of stealing his
wallet. The farmer recognised that the boy was severely injured, but he does not report the
incident to the police nor seek medical attention for the boy. If the farmer reported the
incident of theft, then the police would want to see the accused, and then realise that the boy
was assaulted, and that the farmer did not seek medical attention for the boy. The farmer did
not was to reveal the damage that was done by the assault. The boy dies as a result of the
injuries and it was unclear if the farmer had the intention to kill the boy when he assaulted. In
order for the farmer to be held liable for murder, it would be required that the farmer acted
with the necessary intention to commit murder at the time of the assault. The court did find
the farmer guilty of murder. Although the farmer did not have the intention to kill the boy
when he initially assaulted him, the fact that the farmer created a potentially dangerous
situation, necessitated the farmer to do something positive to mitigate the harm caused by the
assault. The farmers failure to get medical attention for the boy was the unlawful act which
precipitated the court deciding that the conviction of murder was necessary. The fact that the
farmer knew the boy was injured and did nothing about it satisfied the intention element for
the crime of murder.
Control of a potentially dangerous thing or animal

Assuming control of a potentially dangerous thing or object brings about a situation in which
the accused has a legal duty to act positively, such that the thing or animal he is control of
causes no harm to the legal interests of another. E.g. if a fire starts on a persons farm because
of lightening then that person has a duty to ensure that the fire does not spread. The persons
prior conduct here is irrelevant. However, the person has assumed control of the potentially
dangerous thing and he or she must act positively to extinguish any harm from eventuating.
In the case of Fernandez 1966 (2) SA 259 (A) the accused failed to prevent the escape of a
dangerous baboon which was in his control. The baboon escaped from a cage which the
accused was repairing. The baboon escaped and killed a child. The accused was convicted of
culpable homicide. The accused assumed reasonability for the potentially dangerous animal.
When the animal caused the harm to the young child, the accused could be held criminally
liable because he did not act positively to negate the harm occurring.

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The control of a potentially dangerous situation, and not a potentially dangerous thing, does
not create liability, this would unreasonably extend the scope of legal duties. Examples would
be failing to rescue a drowning person. This would extend the duties on an ordinary person.

Special or protective relationship.

This gives rise to a legal duty to act. It occurs in respect of children and parents or between
spouses. It is created due to the interdependence that emanates from shared family life or
close communal living. This creates a reasonable expectation of assistance, thereby creating a
duty to act. One consideration is the extent to which this rule applies because it must be
determined if this duty extends when spouses are divorced, or children move out of the
parental home. If a person has dependents then there is a legal duty on that person to act
positively to ensure harm does not occur to that person.
It occurs if one person voluntarily assumes responsibility toward another or when another
reasonably expects assistance, then a legal duty to act is created.
In the case of Stone and Dobinson [1977] QB 354 (CA), the accused was a 67 year-old man
who was partially deaf and blind and woman lived who lived with him. The court described
this woman as inadequate, that is, she could not take care of herself. Their mentally
subnormal son lived with the couple. The mans sister came to live with the man, the woman
and their son. The mans sister suffered from anorexia nervosa. This disease creates a warped
image in the mind of the person looking in the mirror, the victim of the disease thinks they
are too fat and starves. The mans sister did not eat properly and she stayed in her bed until
she died in terrible condition. The man’s sister died from neglect. The man and the woman
were held liable, even though they were in a bad condition themselves. The court held that
the man and the woman are criminally liable because there was a blood relation living in the
same house as the accused. They were living in the same house and the sister was dependant
on the man and the woman to bring her food. The man and the woman had voluntarily
assumed a duty to care. The fact that she moved into their house and the man and woman
accepted this situation results in a duty of care existing upon the man and the woman. Due to
the close relationship between the accused and the victim there was a duty to care on the part
of the man and the woman. The man and woman needed to contact the authorities and ask for
assistance because they could not manage with the sister living with them.
In the case of Beardsley (1907): the wife was out of town for the weekend and the man
brought a mistress home. The man and the mistress drank heavily and then the mistress
became suicidal. The mistress consumed morphine tablets and the accused hid her in the
basement. The court held that there was no duty to act positively.

Public office or quasi-public office

In the case of Minister van Polisie v Ewels 1975 (3) SA 590 (A) a police officer is under the
legal duty to prevent another from being unlawfully assaulted.
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In the case of Mtati v Minister of Justice 1958 (1) SA 221 (A) a prison warder was under the
legal duty to act positively and prevent a prisoner from been assaulted by another prisoner.
In the case of Minister of Police v Skosana 1977 (1) SA 31 (A) a police officer was under a
legal duty to ensure that a sick detainee received prompt medical treatment.
Statute.
In section 61 National Road Traffic Act a person has a duty not to leave the scene of a car
accident.
In the ????? duty to submit income tax form.
In section 54 Sexual Offences and Related Matters) Amendment. Act, 2007 there is a duty to
report knowledge of sexual abuse of child or mentally disabled person.
There is a duty to act and if a person does not act in a way that the Act envisaged then a
person may be held liable.
Contract
A doctor failing to operate on a patient. If there is an obligation upon a person and the person
fails to act, then that person may be liable for not dispensing with the duty entrusted to them.
A life guard who is sitting at a beach is paid to save people, and if he does not then he
violates the duty place upon him by his employment contract.
Common law
There is a duty on every person owing allegiance to the Republic of SA to report any act of
high treason which comes to his/her knowledge.
Order of the Court.
The husbands maintenance towards the wife and child upon the divorce of the couple, and a
failure to do so is an offence.

Liability for the state of affairs. Does not fall exactly within the bounds of commission of
omissions.
In some statutes a mere condition or situation is worthy enough for liability to ensue.
Sometimes a mere situation is punishable by statute. An example would be drunk in a public
place. This is problematic for the principles of personal liability because a voluntary act is not
a requirement. The only thing which is required is the occurrence of the prohibited situation,
which must simply exist. The person does not have to do anything or fail to do anything. The
mere fact that the person is in that situation gives rise to criminal liability.
The unlawful conduct shall be interpreted to include a failure to terminate the state of affairs
within a reasonable time or prior conduct on the part of the accused which resulted in the
dangerous situation.
The person is not acting yet the person is still held liable. However, this runs contrary to the
normal rule which is that for a person to be held criminally liable that person must be
blameworthy. The actual act in respect of liability for the state of affairs should be
interpreted to include failure to terminate a state of affairs within a reasonable time. If a state

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of affairs has been created and an omission to stop it from occurring lead to criminal liability
or prior conduct, such that if a person created that situation then they can be held liable on
that basis. A person who had gotten drunk will be liable for allowing himself to become
drunk.
In the case of R v Achterdam 1911 EDL 366 it was, correctly, held that the accused must be
acquitted of the charge of being drunk in a public place after a constable put the man from the
inside of private garden of the constable to the street, and then arrested him when he found
he was too drunk to go home.
b. Human
There are four parts to the Actus Reus. The act, unlawful, voluntary and human
The criminal law does have concern for non-human entities. An animal is taken into
consideration in respect of the criminal law where an animal is used as a means to hurt
another or when a person does not control an animal properly, and that animal then causes
harm to another person.
A corporation cannot commit unlawful conduct. However, a corporation may be penalized
for the conduct of it’s agents in terms of section 332 of the Criminal Procedure Act. The
unlawful act and the fault of the agent is imputed to the corporation. The actions of the
director or agent are considered to be the conduct of the corporation.

c. The act must be voluntary.

The law will only take into account acts which are under the will of the person acting. If
conduct is involuntary then that is a complete defence and the accused need not be held
liable.
A person can only be liable for conduct committed though one’s own free will. Conduct is
voluntary if it is subject to the control of the will. If the conduct is not subject to the control
of the will of the accused then it is more correct to say that the accused has not done anything
but rather something has happen to the accused which resulted in him acting like an
automaton.
Reflexive muscular contractions are not voluntary. These are merely reactions to outside
stimulus. It is not something that can be controlled.
In the case of S v Ramagaga 1965 (4) SA 254 (O), the accused was fixing a bicycle with a
knife. The victim tickled the accused causing the accused to stand up and intentionally push
the accused. The knife penetrated the victim, and the accused was held liable for culpable
homicide. There was no evidence that the accused acted like an automaton. Reflexive
movements do exclude the voluntariness of the conduct. However, in this case there was not
enough evidence to establish automatism. When he pushed him away the conduct was still in
the control of the accused.
The more immediate and intense the response, then then more likely it is to be involuntary. If
the person takes a long time to respond then, logically, he would have had more time to

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process the information. A person does not think about reflexive actions and these actions
occur spontaneously. The conduct is more likely to be voluntary if the is less immediate.

These cases below illustrate the situation of voluntary and involuntary conduct.
Involuntary conduct includes vis absoluta {absolute force}, reactions to, for example, tickling
or labour pains, hypnosis, sleepwalking and half-state sleeping walking, such that the acts are
conducted under the impact of a nightmare, as observed in the case of R v Dhlamini 1955 (1)
SA 120 (T). An example would be if A if holding a knife and if B, who is much stronger than
A, takes A’s hand with the knife and penetrates it into C’s heart, killing him. A’s will be
completely overridden by B. A did not have the intention to kill c, and, voluntarily, A did not
kill C. A was used by as an instrument by B to kill C.
Vis Compulsiva occurs when B says threatens to kill A if A does not kill C. In this situation A
still has a choice. A’s will be still part of the outcome of the event. A’s will has not been
overridden. The defence in this case would relate to necessity and not involuntary conduct.
Only absolute force is involuntary.
Sane automatism
Hypnosis is another element which cab exclude voluntary conduct. It occurs when a hypnotist
introduces an idea into an accused’s mind. The hypnotist uses a gesture to induce the person
into the hypnotic state in order to carry out the bidding of the hypnotist.
Sleepwalking includes the idea of a person waking up in a half sleep state or acting under the
impact of a nightmare. The case of Dlamini is one of the leading cases, where the accused
had just awoken from a nightmare, a number of people were sleeping in a hut, the deceased
bent down to pick up a mat and the accused stabbed him a number of times. The courts
recognised that the accused had been acting under the influence of a nightmare. The court
further held that if the accused’s version of events is true then he was acting without volition.
The court further held that he was acting in a mechanical way. The accused’s mind was not
connected to reality. It was accepted that the accused was not acting voluntarily. The accused
was on good terms with the deceased and he did not want to kill the deceased. On this basis
the courts found him not guilty. Acting under the impact of a night may exclude voluntariness
of the accused’s conduct.
In the case of R v Ngang 1960 (3) SA 363 (T) the accused awakening and believing that he
was attacked by a ‘tokoloshe’. The accused reached under his pillow, grabbed a knife and
stabbed the victim. He was charged on the basis of the stabbing. The court held that he was
acting automatically. He was acting under the influence of a dream and the court held that he
cannot be held liable for an involuntary movement. His actions were not subject to the control
of his will.
In the case of the R v Simon Fraser (1878) 4 Couper 70 and. The accused had killed a child
while sleeping and was sentenced to not sleep in the room with another person again. He was
acquitted on the charge.
The Parks case in the supreme court of Canada, the court allowed a defence of sleepwalking,
in light of extraordinary actions by the accused. The accused had got into his car and drove
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23 kilometers to his parents’ house. He then attacked his mother in law with a crowbar and
stabbed her to death. He had been under stress and he had a gambling addiction, he had
embezzled money to cover his gambling losses. It was well established that he had a family
history of sleepwalking and he had sleepwalked before. Expert evidence stated that medical
journals listed about 30 cases of murder committed by sleepwalkers. The court accepted that
this was possible based on the expert evidence. Sleepwalking can exclude the voluntariness
of the accused conduct.
R v Parks [1990] 56 CCC (3d) 449), the accused suffered a hypoglycaemia, ‘black-out’

In the case of R v Mkize 1959 (2) SA 260 (N)); the accused suffered a fit of epilepsy. The
accused was charged with the murder of his sister when he stabbed her with a knife. The
court accepted that at the critical moment the accused was unconscious, and therefore was not
acting voluntarily. This resulted in the court finding that he could not be found criminally
liable.
In S v Chretien 1981 (1) SA 1097 (A) the accused relied on a defence of intoxication, to the
extent that the intoxication excluded criminal liability. This case illustrates that it is possible
to be so drunk that a person will not be able to control their actions, in a sense that the person
will be acting involuntarily. If this is the case and a person lashes out while in that drunken
condition, then the person will not be held liable for any harm that the person may cause.
In the case of S v Arnold 1985 (3) SA 256 (C), the accused relied on the defence of
provocation. It was held that been provoked into anger and emotional stress can cause
involuntary behaviour. This case was about a man who adored his much younger wife. She
had told him that she was leaving him and she had this discussion with him in which she told
him that she was leaving him. She said that she was leaving him and going back to her job as
a stripper. During this time the accused had a gun and he was tapping in on the back of a
couch. She bent over in front over him without any underwear on, and that is all he can
remember before he shot her dead. The court accepted that he was acting involuntarily. The
amount of emotional stress which he was under, resulted in him not been able to control his
actions. His actions were not subject to the control of his will.
In the case of S v Stellmacher 1983 (2) SA 181 (SWA) the accused relied on the defence of
external stimulus. Stellmacher had been on a strict weight reducing diet. He had not eaten
anything and he went into a bar and proceeding to drink a half a bottle of brandy. The
afternoon sunlight shined in from the window and reflected on the bottle in front of him. This
was an external stimulus. He lapsed into this involuntary condition when he shot the deceased
dead. The court heard expert evidence which stated that the involuntary condition could have
been due to hypoglycaemia or epilepsy. The trigger was the external stimulus.
The aforementioned cases are examples of sane automatism. The involuntary conduct did not
emanate from a mental illness.
In the case of Arnold it occurred when his wife bent forward and the not wearing of
underwear triggered him from been in a voluntary state in which he moved with his own
volition to a condition in which he was acting like a automaton.

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In S v Cunningham 1996 (1) SACR 631 (A), it was held that there must exist a trigger
mechanism in order to hold that involuntary conduct has occurred. The trigger mechanism
must be determined in order for a person to enter into a state of involuntary automatism for
that period of time in which the harm occurred.
Amnesia after the fact is not equivalent to automatism. The critical question is not what the
accused remembers, but whether her conduct voluntary such that it was the determinant in
causing the harm. The question is not whether the accused can remember, but instead whether
the accused was acting voluntarily at the time of the commission of the act. If the accused
acted involuntarily then the accused will have amnesia. However, amnesia is not an indicator
of involuntariness. The brain uses amnesia as a type of defence mechanism, which rids the
brain of traumatic experiences.
When the accused can remember, even partial recollection thereof, then this would exclude
the defence of sane automatism.

In the case of a person acting involuntarily at the moment the harm occurred, it is noteworthy
if voluntary conduct can be factored into the moment the harm occurred. Ngang had put the
knife under his pillow. This knife was used to kill the deceased. The voluntary act of putting
a knife under the pillow could be taken into consideration. This would result in antecedent
liability. One must determine, if at stage 1 of the antecedent liability process, whether the
accused was acting involuntarily or not. If an accused was acting involuntarily at stage 2, that
accused could be liable if they voluntarily acted in stage 1.
There are important distinctions between sane automatism and insane automatism.
The onus of proof is upon the state to proof beyond reasonable doubt that the accused acted
voluntarily, once the accused has provided a prima facie case for sane automatism.
If the automatism results from a mental illness then whoever alleges the insanity must prove
it upon a balance of probabilities.
If the accused successfully relies on the defence of sane automatism, then the verdict will be
an unconditional acquittal.
In the case of a successful reliance on the defence of insane automatism the verdict will be a
technical acquittal, but the court has the discretion to order the convicted person to be
committed to a mental hospital, as per section 78 of the Criminal Procedure Act.
The courts are reluctant to consider cases in which the state of automatism was induced while
the accused was driving.
In the case of Stellmacher supra the state sought to prove that the accused was mentally ill,
but failed in this regard, hence the accused as acquitted. Usually the state has to prove that the
accused was acting voluntarily, after the accused sets out a basic framework for his or her
defence. Usually the accused has to prove, on a balance of probabilities, that he or she acted
in a state of automatism resulting from a mental illness.
If the accused relies on the defence of sane automatism then the state must prove that the act
was committed voluntarily. (Trickett 1973 (3) SA 526 (T) 537

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In the following cases the court was reluctant to consider cases of driving, whereby the
accused relied on a defence of automatism,
S v Lombard 1964 (4) SA 346 (T): the accused was stung by a horse fly, which then affected
his driving. The court held that been stung by an insect does not amount to a state of sane
automatism.
S v Crockart 1971 (2) SA 496 (RAD): The passenger in vehicle had struck a match, and the
broken head of the matchstick, which alight, dismembered from the matchstick, and flew in
between the drivers leg. This resulted in unconventional driving, and the accused contended
that he was acting involuntarily. The court was not convinced by this argument.
S v Trickett 1973 (3) SA 526 (T): a young woman had claimed she had a black-out. She
claimed that the car which she was driving had swerved onto the oncoming traffic and
collided head-on with an approaching vehicle. She had claimed automatism because she
blacked-out. The court rejected this argument, and a possible reason for rejecting it would be
a lack of a factual foundation or evidentiary framework for claiming that she slipped into a
state of automatism. She could not indicate why at one moment she was acting voluntarily,
and the next moment acting involuntarily. She needed to provide more evidence as to the
reason for her not acting autonomously.
S v Erwin 1974 (3) SA 438 (C)): The courts were strict in respect of the automatism. The
accused was stung by a bee and he jerked his head as the bee was stinging him. In addition to
been stung by the bee, he also smashed his sunglasses. The courts were not impressed and
held that the person acted voluntarily.
In the case of Van Rensburg (1987 (3) SA 35 (T): The accused had went for medical tests and
a medical examination. The accused was not told that he would feel sleepy, because this was
a side-effect of the test. The accused blood sugar was low and the court held that the
accused’s falling asleep behind the wheel, as a result of a hypoglycaemic condition, was
involuntary. The accused was not warned that this could occur, therefore there was no
antecedent liability.
S v Henry 1999 (1) SACR 13 (SCA).
The application regarding sane automatism was dealt with in S v Henry 1999 (1) SACR 13
(SCA).
The appellants ex-wife was awarded custody of their daughter. The appellant brought the
ward back from a visit, and he was going to request for his daughter to stay overnight with
him. He was confronted by his ex-wife and ex-mother-in-law, when he shot and killed them
both. The accused contended that he acted in a state of rage when he heard shouting and
banging noise, upon which, he ‘knew something must have taken place. The accused told his
daughter and a relative that he shot his ex-wife. However, he was shaking and visibly upset.
The appellant in this case was charged of two counts of murder and one count of pointing a
firearm. The charges were based on, the fact that the accused shot the accused’s ex-wife and
ex-mother-in-law. The appellant pointed the firearm at the fiancé of the appellant’s ex-
mother-in-law. The appellant relied on a defence of sane automatism. In the Cape Provincial
Division, it was held that the accused was guilty on all three charges and was subsequently

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sentenced to ten years imprisonment. The appellant appealed against the convictions to the
SCA.
The court held, in terms of the law relating to automatism:
The accused did not act with a lack of capacity such that he could not distinguish between
right and wrong or that he was incapable of acting accordingly, but that at the critical time he
was acting in a state of automatism not attributable to the cause of a mental pathology or a
mental illness. It is trite law that voluntary conduct is an essential element of criminal
responsibility. The absence of a voluntariness in respect of the commission to act has been
attributed to other causes beyond that of mental pathology, this situation was observed in the
cases of S v Kalogoropoulos 1993 (1) SACR 12 (A), S v Potgieter 1994 (1) SACR 61(A), S v
Kensley 1995 (1) SACR 646 (A) and S v Cunningham (1) SACR 631 (A).
When the state is discharging this onus, it is assisted by the natural inference that in the
absence if exceptional circumstances a sane person acts with voluntariness when he engages
in conduct which would normally give rise to criminal liability. If such an inference were to
be challenged, then there must be a proper basis to be established which is sufficiently
compelling to raise doubt as to the voluntariness of the conduct, and if it was involuntary,
then was it attributable to a non-pathological incapacity.
Non-pathological capacity must be scrutinized closely.
The only person who can give evidence regarding the level of consciousness of the accused at
the time of the commission of the act, is the accused. The accused ipse dixit {unproven
statement} regarding his involuntary conduct needs to be weighed against all the
circumstances and especially against the criminal conduct viewed objectively. A loss of
temper is not sufficient to hold conduct involuntary. Criminal conduct arising from emotional
stress is usually preceded by provocation.
Loss of temper is a normal and common occurrence, and in the circumstances, it may be
enough to mitigate the harm, but it may not exonerate.
Non-pathological incapacity or loss of cognitive capacity due to emotional provocation is not
a common occurrence. Expert evidence is required to speak to the psychiatric nature of the
accused will be of assistance to the court in determining whether the involuntary conduct was
a result non-pathological and emotionally induced reasons.
One must consider the nature of the emotional stress which caused the person to act in a state
of non-pathological incapacity. One must also consider the absence of awareness and
cognitive control.
It may be generally accepted that amnesia follows automatism, but the converse is not true.
Amnesia is not indicative of automatism. The court must consider all the facts and not merely
rely on expert evidence.
The court held that there was a reasonable possibility that the accused acted in a state of sane
automatism. The court did not find that there was a trigger mechanism despite the appellants
apparent emotional tension, frustration and resentment. This was clear by the use of the
words used by the appellant, that is, “fear” and he had the intent to leave the scene as soon as

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possible. This indicates that he was aware of his actions, and at no stage was he acting like an
automaton.
It was held that amnesia was not a consideration due to the lack of evidence to support it.
The court concluded that there was not factual foundation for involuntariness, therefore the
case was dismissed, and the conviction was upheld.
S v Cunningham 1996 (1) SACR 631 (A).
The appellant was charged with murder, attempted murder and contraventions of the section
118 of the Road Traffic Act 29 of 1989.
These charged were based on the fact that there was a motor vehicle collision between the
appellant and two cyclists. There was a failure to stop immediately, and a failure to assess
injuries or damage caused by the appellant.
The defence of the appellant was sane automatism, such that the conduct of the accused was
not due to a mental illness, but rather something unrelated to mental illness.
The trial court held that the accused was not guilty of murder, not guilty of attempted murder
and not guilty of the contraventions in respect of section 118 of the Road Traffic Act. The
court found that the accused was guilty of culpable homicide.
The court sentenced the accused to 3 years correctional supervision, 4 years imprisonment
conditionally suspended for 4 years and a suspension of the accused’s drivers license for 2
years.
After the trial courts decision, there was an appeal to the High court. The conviction of
culpable homicide was confirmed, the sentence was altered to 2 years suspended
imprisonment and the extension of the order suspending the drivers license. The application
for the cancellation of the order of suspension provided that the appellant must submit proof
that he has fully recovered from his mental health problems. This decision was appealed to
the Appellate division against the conviction of culpable homicide.
The appellant was driving too fast and went through red traffic lights. He overtook a
stationary car on the wrong side of the road, he collided with two cyclists and returned to the
correct side of the road and then collided was a refuse bin which was on the incorrect side of
the road.
One cyclist was killed and the other cyclist was paralysed in his arm.
The appellant resisted been restrained, he was delirious, shouting and swearing. He was not
under the influence of alcohol. When he was giving his statement to the police, he appeared
normal.
He testified that he could not remember and that he had amnesia regarding the collision.
The basis for the appeal against the conviction was that the magistrate had failed to recognise
a reasonable possibility that the appellant acted in a state of sane automatism.

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Criminal liability presupposes a voluntary act or omission on the part of the wrongdoer.
Automatism precludes criminal liability. There is a distinction to be noted between sane
automatism and insane automatism.
Sane automatism is attributed because of some temporary issue in respect of the mental
faculties of the accused. The onus of proof in this regard is the state and the state must prove
beyond reasonable doubt that the act was voluntary.
In the case of insane automatism the onus is upon the one claiming the automatism and this
must be proved on a balance of probabilities.
The above distinction was observed in S v Mahlinza 1967 (1) SA 408 (A), S v Campher
1987 (1) SA 940 (A) and S v Trickett 1973 (3) SA 526 (T).
The state is assisted by the inference that when a sane person engages in conduct that would
bring about criminal liability, in the absence of exceptional circumstances, does so
voluntarily.
If such an inference had to be challenged, then there must exist a compelling reason which
raises doubt regarding the involuntary nature of the act, and if involuntary, then such
involuntariness originated from something other than mental pathology.
The court must take into account expert evidence and all the facts and circumstances
surrounding the case.
If there is no amnesia, then there can be no finding of automatism. The accused gave
evidence that he only had a recollection of leaving Hout bay and then been locked up in a
police van. The doctor explained that the reason for contradictions was because at the time of
making one statement, the appellant was reconstructing from that which he had heard.
He had a sketchy recollection of the accident because it was an unpleasant memory, which he
expunged from memory.
The only acceptable explanation for the accused’s inability to recall was amnesia.
Subsequently, the collision did not leave the appellant with total amnesia in relation to the
critical period.
The hooting and reactions of overtaking were not consistent with the conduct of a person
acting like an automaton. The expert witness stated that a confused recollection is not
inconsistent with automatism. The doctor also opined that such hooting did not exclude his
diagnosis of automatism for been the likely explanation for the appellants conduct.
The basis for rejecting the defence of automatism is the lack of a trigger mechanism which
would normally give rise to a state of automatism. The doctor opined that the lack of the
trigger mechanism did not exclude his diagnosis of automatism, and that something as simple
as frustration regarding a fishing spot or lack thereof could trigger the state of automatism.
The court held that experience dictates that in the absence of an organic cause, people do not
simply slip into a state of automatism without some extraordinary, emotionally charged event
occurring prior to the automatism.

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The appellant was under stress from work, he was not pleased by the behaviour of a Mrs
Cronje and it was accused of molesting Mrs Cronje.
He was upset by the information that Mrs Cronje was a prostitute.
This information did not cause him to lapse into a state of automatism. He described in
detailed how he had driven to a restaurant. He did not mention been frustrated by not getting
a spot as a fisherman. The appellant made no mention of any event which could have caused
him to slip into the state of automatism.
The effect of the expert witness not conceding with the court is of no consequence, because
the court has the final say as to whether automatism was present or absent.
The facts in the case which indicated automatism were only the fact that the appellant
suffered with amnesia and his out of character behaviour.
In respect of amnesia, its presence did not justify the diagnosis of automatism. In respect of
his hypomanic behavior, the appellant was treated voluntarily and Valkenburg hospital.
He had an occasion triggered by the stress of writing an examination. Shortly after the
collision he displayed signs of hypomania. Mrs Cronje described the appellant as talking in
figures like a robot. Prior to the collision the appellant was distressed and was showing early
signs of hypomania. He was not able to properly concentrate prior to the collision, therefore
driving in an erratic manner is understandable.
There was no trigger mechanism, therefore there was no factual foundation to negate the
inference of voluntariness. The court held that the appellant had been correctly convicted of
culpable homicide. The amnesia which occurred after the collision does indicate the
reasonable possibility of automatism, therefore the acquittal of the charges in respect of
section 118 of the Road Traffic Act was correct. The appeal was dismissed.
Crucial questions in respect of conduct
Corporate bodies may be held criminally liable in terms of statutory rules or corporate
criminal liability. The general rule is that only humans may act and incur criminal liability.
Criminal liability may be as a result of a positive act on the part of the accused or an
omission, a failure to act on the part of the accused.
The general rule is that there can be no liability for an omission, except if the legal
convictions of the community expect a person to act positively in a situation.
The accused will be liable for his or hers conduct by the court if the court decides that the
legal convictions of the community insist that the accused be sanctioned for his conduct, that
is punished for his or hers failure to act.
Topic 3 Causation
Causation relates to the actus reus. There must be a distinction between unlawful conduct that
results in a consequence and an unlawful that consists in a circumstance. Causation is only
relevant in materially defined crimes or consequence crimes.

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In murder and culpable homicide there must be a causal link between the act of the accused
and the harmful consequence.

The Case of Ronald Opus.

23 March 23, 1994 a medical examiner declared that Ronald Opus has died from a gunshot
wound caused by a shotgun.
Ronald attempted committing suicide and jumped from the tenth story floor of a building.
On his fall down he was hit by the shotgun blast which killed him instantly. There were
safety nets on the side on the 8th floor of the building for the workers. The shooter nor the
deceased were aware of the safety nets.
Ronald did not know that he would be unsuccessful in his attempted suicide.
The medical examiner presumed that the case would be one of homicide.
An elderly couple were arguing on the 9th floor, from whence the shotgun blast had emanated.
The man was threatening the woman with a shotgun and he got so upset that he could not
hold onto it anymore.
He pulled the trigger and missed his wife, such that the pellets broke the window and struck
Ronald in the head killing him.

If a person intends to kill person A but kills person B in the attempt, then that person may
be guilty of the murder of person B.

The man and woman contended that they did not know the shotgun was loaded, and that the
man often threatened his wife with an unloaded shotgun. He had no intention to commit
murder, therefore the killing of the deceased was an accident.
Evidence reveals that the couple’s son was loading the gun 6 week prior to the shooting.

The mother had cut of the sons financial support. The son knew that the father threatened the
mother with the shotgun and the son loaded the gun with the hope that the father would
threaten the mother and shoot her.
The case has become one of the murder of Ronald by the son.
Upon further investigation, it was revealed that the son was Ronald Opus.
The medical examiner declared the case closed as a suicide.

Causation

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This element is related to the actus reus, because it relates primarily to conduct. There is a
distinction between unlawful conduct that causes a harmful consequence and conduct that is
unlawful from the onset.
In the case of consequence crimes such as murder, there must be a causal connection between
the act or the omission and the harmful and unlawful consequence, the persons death.
When the prosecution is dealing with formally defined crimes or conduct that is unlawful in
the circumstances, the prosecution does not need to prove that there was a causal link
between the initial conduct and the harmful consequence.
In the case of homicide, if the accused’s conduct advanced the death of the deceased then
there is said to be a causal connection between the act and the harm. If the accused act caused
the deceased to die sooner then he or she would liable.

Common Purpose: There need not be a causal link between the act of a particular participant
and the unlawful consequence. There must be a causal link between one of the members of
the group of participants and the actual unlawful consequence. In respect of common purpose
liability, the act of one is imputed or attributed all other participants who are acting together
in the common purpose. The prosecution does not have to prove causal liability in respect of
a certain individual.
The causal requirement in consequence crimes is justified by the principle of individual
autonomy.
Individual autonomy enables people to be capable of choosing their conduct, that is whether
they should act or not act. It follows that people are the agents responsible for the normal
consequences which flow from their conduct.
Once a person had made a certain choice, then their choice must be respected. However, that
person incurs liability for the normal consequences which flow from that act. Causation is
underpinned on the principle of autonomy.
Two tests must be satisfied. Factual and legal causation.
Factual Causation
The condition or requirement without which not.
This test makes a connection between that which was engaged in by the accused and the
ensuing harm.
The but for or conditio sine qua non test is the first stage of the inquiry into causation or
whether there was a causal link between the initial conduct of the accused of the harmful
consequence which ensued.
It is generally accepted that the conditio sine qua non test creates a very liable range of
situations which may lead to criminal liability if applied alone. Liability needs to be limited.

If the conduct in question is a positive act then one must ask whether, but for the accused
conduct would be the harmful result have occurred or would not have occurred.

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But for the unlawful conduct would the harmful consequence have occurred? The answer to
this must be in the negative.

When dealing with a positive act one needs to question, but for the conduct of the accused,
would the harmful consequence have not materialised or not occurred when it did? The
answer to this should be in the affirmative.
Another way to phrase this would be but for the conduct of the accused, would the harm have
materialised? The answer should be in the negative.

It must be true that if not for the conduct of the accused the harmful consequence would not
have occurred.
The act is the cause of the consequence if the act cannot be thought away from the sequence
of events with the consequence disappearing, then the act is the factual cause of the harmful
consequence
.
The court must hypothetically eliminate the conduct from the course of events and determine
whether the harmful consequence would have occurred. The court must look back to the time
the harm occurred and consider if the conduct is removed from the scenario would the harm
have occurred? If the harmful consequence disappears without the accused conduct being
present then factual causation has been established.

An example illustrates that if A shoots B and B dies, and removing the conduct of A results
in B not dying then A’s conduct is the factual cause of B’s death.

S v Ramosunya 2000 (2) SACR 257 (T), where court held that the causal link had not been
established between the accused stabbing the deceased and her death. The accused had
stabbed the victim, and the victim went into hospital, and then was released from hospital.
The victim died within a day of been released from hospital. The court had to determine if the
accused could be held liable for the death of the victim. The court had to first determine if the
conduct of the accused was the factual cause of the death. The court had to determine if the
conduct of the accused was removed from the set of facts would the deceased have died. The
court did not hold that the stabbing was the cause of death, and the cause of death was
unclear. The causal link had not been established between the stabbing the death.

S v Maqubela 2017 (2) SACR 690 (SCA) – held that the scientific test for causation should
not be confused with the legal test, and that the legal test should be applied. The scientific test
requires 100% proof to establish that the accused conduct is definitely the cause. The legal
test for causation is based on probabilities.

‘The application of the conditio sine qua non formula may be illustrated as follows: Assume
X assaults Y and injures him to such an extent that he must undergo an operation. Y dies
during the operation. In this case X’s act is a factual cause of Y’s death, because if he had not
assaulted Y, it would not have been necessary to operate on Y and Y would not have died.
Contrast, however, the following situation: X administers poison to Y. It is a poison that takes
a reasonably long period to have an effect. Before the poison can kill Y, Y suffers a heart
attack due to natural causes (in other words, a cause not linked to the poisoning) and dies. In

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this case X’s act is not a factual cause of Y’s death because Y would have died at that
particular time even had X not administered the poison.’ (Snyman 82)

When the conduct is an omission the court will add to the factual situation, the act which
should have been performed.

A who is B’s mother does not feed B and A is under a legal duty to care for B. The court will
add in the conduct which was not performed, that of feeding the child, and if the consequence
does not occur after the adding in then the accused conduct is the factual cause of the
prohibited outcome.

The conduct which was omitted by the accused is added to the factual situation and if the
harmful consequence disappears then the conduct of the accused is the factual cause of the
harm.

Legal Causation

There are three main tests for determining legal caustion, the proximate cause, the adequate
cause and the novus actus interveniens. The last test is of importance but the general
approach will be highlighted in the case of Mokgethi.
The novus actus interveniens describes a situation in which there exists an abnormal
intervening act or event which breaks the chain of causation. The normalcy or abnormality of
the event is judged according to the standards of normal human experience. This test
determines if there is anything that will break the link that was established in the test for
factual causation. The new intervening event must be an abnormal occurrence in normal
human experience.

Case: - Loubser 1953 (2) PH H190 (W)

The accused was charged with culpable homicide after unlawfully assaulting the deceased.
The deceased was harmed due to an open head wound caused by the accused. The deceased’s
employer advised him to go to the hospital, but the deceased refused to take heed. The
deceased bound the wound in dirty rags, infection set in, and the deceased died from tetanus.
The court held that the act of deceased was not abnormal in the context of the crime, and it
could be expected in the light of normal human experience. Hence, the court concluded that
the was no new intervening act and x could be causally liable for the death of the deceased.
The court held that it was normal to expect the accused to bound up his head with rags. The
victim was a very simple person, he was a farm worker, and he was not accustomed to
dealing with medical doctors. It was normal to expect the victim to attempt to self-treat
himself.
The victims failure to visit a doctor was not a novus actus interveniens.

The scenario I based on the facts of R v Lewis [1970] Crim LR 647). Wife (y) locked herself
in a third-floor apartment, refusing to let in her abusive husband. The husband threatens to

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kill her, and she then hears glass breaking. The woman jumps out of the window because she
is terrified of the husband.

Two possible scenarios.

a. Falls and breaks her legs
b. Falls at the feet of a mugger, who fatally stabs her.
In both situations the husband would be the factual cause of the harm occurring. But for the
conduct of the husband, would the harm have occurred in both situations. The answer to this
is no. It is true that if the husband did not engage in such conduct, the wife would not have
jumped out of the window, and been harmed in the ways described in the two scenarios.
In respect of legal causation, it must be determined if the jumping out of the window or the
mugger robbing her were new intervening acts.
Many events can intervene or contribute towards the ultimate harm, but not all these events
will break the chain of causation.
If the accused punches the victim and the victim then trips backwards over a chair, and then
falls out of the window. The tripping and falling over are contributory cause of the ultimate
injury, but this is a dependent intervening cause because it is closely related to the original
punch thrown by the accused. This does not break the chain of causation.
In the case above the act of the mugger was an independent intervening cause. Its occurrence
was independent of the conduct of the accused. The accused will not be liable for the death of
the deceased. This would be a novus actus interveniens. This was an abnormal and
unexpected intervening cause.
Only a factual cause of a situation may be established as a legal cause of a prohibited
situation.
Legal causation is based on value judgments and policy considerations.
The element of causation is difference from foreseeability in respect of negligent conduct.
Reasonable foreseeability is considered part of the test for negligence.

Novus Actus Interveniens

It is an act that is that is abnormal or unlikely, in the light of human experience, to occur after
the conduct of the accused.
The likelihood of an intervening act been regarded as a novus actus interveniens is higher
when the injury inflicted by the accused is not an injury that would result in the fatality of the
victim. This was observed in the case of S v Mbambo 1965 (2) SA 843 (A). There were two

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accused in this case, one of the accused had thrown a stone on the head of the victim. The
second accused then saw the victim and stabbed him with a knife. The first accused’s conduct
was the factual cause of the death of the victim because if he had not thrown the stone which
hit the victims head then the victim would not have been knocked over, thereby providing an
opportunity for the second accused to stab the victim. The conduct if the second accused was
independent from the conduct of the first accused. The conduct of the second accused broke
the causal chain between the actions of the first accused and the death of the victim. The
injury inflicted by the first accused was not mortal. The second accused’s fatal stabbing of the
victim broke the causal chain between the first accused and the death of the victim.
The accused does not need to be the sole cause of the consequence. Voluntary conduct is
more likely to be considered a novus actus than involuntary conduct.

An event that would normally be considered as a novus actus, would not be regarded as such
if it was foreseen or planned by the accused, or reasonably foreseeable in respect of cases
involving negligence.
R v Roberts (1971) 56 Cr App R 95;: Roberts was driving his car with a female passenger. He
was trying the indecently assault her while he was driving. She was trying to get away and
jumped from a moving vehicle causing her bodily harm. Her jumping out of the moving car
would be regarded as an abnormal event, but the court held that when the accused started to
assault her, it was foreseeable that she would attempt to getaway. The accused was still held
responsible. The jumping out of the moving car did not break the causal chain of events.
R v Pagett (1983) 76 Cr App R 279: The police had arrived to arrest a criminal and when the
police arrived the criminal took his girlfriend and held her in front of himself as a human
shield. He then started shooting at the police. The police retaliated with gunfire and the
girlfriend was shot dead. The criminal was then charged with murder. The abnormal event in
this case was that the police had fired the shot which killed the girlfriend, but the criminal
was charged with murder. The police gunshots would normally be regarded as a new
intervening act because it would break the causal link between his actions and the death of his
girlfriend. The court held that when he held his girlfriend in that position it was foreseeable
that she could get shot by the police.
R v Mjobe 1938 EDL 303: the accused had assaulted the victim in an attempt to get a demon
out of a child. The accused was marching her towards a cliff, and in she slipped while trying
to escape from the accused. The court held that the accused was causally responsible for her
death. It was clear that she had slipped and this would normally be regarded as an abnormal
event, but on the facts it was foreseeable that she might attempt to escape and fall over the
cliff.

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S v Lungile 1999 (2) SACR 597 (SCA)]: in this case a robbery had taken place in a main
street in PE. The robbers were in the store and there was an exchange of gunfire between the
police and the robbers. One of the police bullets had penetrated one of the employees of the
store and killed her. The robbers are charged with the murder of the deceased. Ordinarily, the
fact it was a police bullet that killed that deceased would break the causal chain which linked
the conduct of the accused and the death of the employee. The court held that this does not
break the causal chain of events. The reason a novus actus interveniens does not apply is
because in South African law a novus actus interveniens, in the context in which the crime
took place, is an abnormal event and completely independent of the act of the accused. The
death of the deceased was cause by a gunshot fired during the course of a gun battle between
the accused and the police was not abnormal or unforeseeable by the accused. It was
foreseeable that the police could enter the scene, a gun battle could ensue as there is no other
reason for robber to take firearms with them. The robbers must have foreseen that an innocent
party may be killed in the process. The novus actus defence could not be upheld. Most
authority.
* eg Y (in above illustration) jumping out of window reasonably foreseeable; shooting herself
(arguably) not.
The victims pre-existing conditions do not equate to a novus actus as the law states that you
take your victim as you find him, or the thin skull rule. This operates in terms of physical
susceptibilities.

The thin skull rule can also be extended from physical to emotional or religious conditions as
was observed in the case of R v Blaue (1975) 61 Cr App R 271. In this case the victim
refused undergo a blood transfusion due to his religious beliefs. This case was mentioned in
the Mokgheti case therefore it will apply in South African law. The victim in this case was
stabbed and she had lost a large quantity of blood. She needed a blood transfusion but refused
to undergo this procedure because of her religious views. She died as a result. The accused
argued that the victims unreasonable refusal of medical treatment was a novus actus
interveniens. The court held that the accused must take their victim as they found them. He
refusal to accept treatment did not break that causal chain of events.
Case: R v McKechnie (1992) 94 Cr App R 51: the accused attacked the victim and caused
serious head injuries, after attacking the victim with a TV set. The victim was taken to
hospital and it was discovered that the victim was suffering from a duodenal ulcer which
required surgery. The doctor concluded that they could not operate because of the head
injury. The doctors did not operate on the victim to sort out the ulcer. The ulcer burst and the
victim died. It may be argued that the victims death was not caused by the head injury
inflicted by the accused, but by the doctors failure to operate on the ulcer. The court held that
you take your victim as you find them.

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In order to determine is medical intervention amounts to a novus actus, it is necessary to
determine whether the medical practitioner acted with negligence, or in some other improper
way.
S v Counter 2000 (2) SACR 241 (T), 2003 (1) SACR 143 (SCA); the accused had shot the
victim in the buttock. The accused was married to the victim. The medical practitioners did
not pick up on the actual harm that was done, and they treated her for a flesh wound. The
bullet had gone through the rectum and through the anal canal. Infection set in and spread
throughout the body, and the victim had died from the infections. The accused argued that he
did shoot her but it was the negligent medical treatment that caused the death of the victim. If
the medical practitioners had picked up the injury and treated her properly then she would not
have died. The court was not willing to accept that this was a novus actus interveniens. The
court held that he should be held liable because the infection had followed from that which he
had done. The bullet wound caused the infection and the infection killed her. The court held
that in is inconceivable that the accused should not be held liable for he conduct, which led
directly to the death of the deceased. That outcome was foreseeable and normal in human
experience. Despite the medical negligence in this case, the medical negligence did not break
the causal chain of events.
R v Smith [1959] 2 All ER 193 – Smith had been stabbed by a soldier and while been
transported he was dropped twice. The bayonet had pierced his lung and cause a hemorrhage.
The victim was bleeding internally. When the victim arrived at the hospital the doctor failed
to realise the seriousness of the situation. The doctor gave him the wrong treatment. The
victim died as a result. The accused could still be held liable because the wound was still a
substantial and operating cause of death. Only if it can be said that the original wounding is
merely the setting in which another cause operates can it be said that the death did not result
from the wound. Putting it another way, only if the second cause is so overwhelming as to
make the original wound merely part of the history can it be said that the death does not flow
from the wound.
R v Jordan (1956) 40 Cr App R 152 (CA) it was shown how the wound can become part of
the history of the event, rather than become a substantial and operating cause. The original
wound was caused by Jordan had almost healed when the victim had died. The victim did not
die from an effect of the wound. The hospital had administered an antibiotic which the victim
had previously shown to be intolerant to. His system did not tolerate the medication and the
hospital gave him this medication. The wound was the reason for the victim been sent to
hospital. However, the deceased had died from the incorrect medication which was given to
him, at the moment when he was recovered.
In the case of S v Tembani 2007 (1) SACR 355 (SCA) the accused shot his girlfriend in the
abdomen. She received inferior medical treatment at the hospital, and she died two weeks
later. The accused contended that victim received negligent medical treatment, and that this
negligent medical treatment broke the causal chain between the accused conduct and the
death of the victim.
The SCA acknowledged that the treatment was negligent. However, the court held that the
wound caused by the accused was still a substantial and operating cause of death. The court
held further that the deliberate infliction of an inherently dangerous wound which would
normally result in the victim dying without medical treatment, must result in the accused

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attaining criminal liability for the ensuing death. The idea that the wound was readily
treatable or that the treatment received later was substandard is of no consequence, unless the
victim had recovered from the wound and the time of the negligent treatment and the original
injury did not pose a threat to the victim’s life any longer. This was unlike the Jordan case in
which the wound was not a substantial and operating cause of death.
The court that this approach is based on two policy considerations.
One relates to the culpability of the accused. If the accused deliberately inflicts an inherently
fatal wound then the accused embraces, through his conscious conduct, that the death of the
victim may ensue. When a person inflicts a wound intentionally knowing that the wound
might cause the victim to die then another person’s subsequent failure to save the persons life
does not qualify as a novus actus interveniens, even if the medical treatment was negligent.
The failure of medical practitioners to save the victims life does not affect the liability of the
assailant, regardless of the standard of medical treatment given to the victim. In South Africa
medical resources are scarce and not distributed sufficiently. It is incorrect to impute liability
based on the assumption that reliable medical treatment will be accessible to the victim, or
that the absence of such treatment should excuse the assailant from the liability of the death
of the victim. It cannot be a decision that will make the future rulings based on which hospital
the victim visits for treatment. The ruling must encompass all hospitals under one decision.
The court held further that in the event of gross medical negligence the chain of causation
would not be broken, unless such medical treatment was administered in bad faith.
As soon as an intrinsically fatal wound is inflicted by the accused then that accused cannot
rely on the defence of negligent medical treatment.
Failure in attempting to save a life.
In the case of S v Williams 1986 (4) SA 1188 (A), the deceased was shot in the neck and was
placed on a respirator. The doctors decided to switch of the machine, and the deceased was
declared dead. The accused contended that the doctors action of switching the respirator off
was the cause of death, and not the gunshot wound. The court held that if a person is fatally
wound, and requires immediate medical attention, then switching off the machine which
keeps the person alive does not equate to the cause of death.
The court held further that the switching off of the life-support system by a medical
practitioner was not a novus actus. The switching off of the machine did not break the chain
of causation initiated by the accused when he inflicted the fatal wound on the victim. There is
a distinction to be made between the ending of a fruitless attempt to save a life, and the
positive act which caused the death.
There are case in which the accused encourages the victim to commit suicide. It must be
determined whether the subsequent positive conduct of the victim, in taking their own life,
breaks the causal chain of events initiated by the accused.
Cases:
R v Nbakwa 1956 (2) SA 557 (SR): In the case of Nbakwa the court held that the voluntary
act of the victim, in taking their own life, would break that causal chain of events. The
deceased had taken responsibility for the death of her a granddaughter and son. The accused
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said to the deceased that she needs to kill herself. The accused had left the deceased, but
when he had arrived he had found that the deceased was still alive, and he had asked why this
was the case. The accuse immediately provided a means for the deceased to kill herself. He
had taken her into a neighbouring hut and provided the means for her to take her own life, by
hanging herself. It had to be determined if her voluntary act of place her head in the noose,
and jumping of the platform from which she stood broke the causal chain of events. In this
case it was held that the conduct of the deceased did break the causal chain of events.
Ex parte die Minister van Justisie: In re S v Grotjohn 1970 (2) SA 355 (A) In the case of
Grotjohn the court found that the causal chain of events were not broken by the voluntary
conduct of the accused. The court overturned the ruling of the court a quo, and held that
murder was an appropriate conviction in the circumstance. The wife was the victim and she
was partially paralysed, and manic depressive. The marital relationship had broken down to
the extent that the husband had started having an affair. The accused collected a gun from his
friend. The deceased said that she will shoot herself and the accused said that she should
shoot herself because she was just a burden to the accused. The accused was found not guilty
in the trial court. On appeal, the court had to determine whether it was possible for the
accused to be held for the murder of the deceased in these circumstances. The fact that the
final act was a person’s own voluntary act which took their own life, does not mean that the
person providing the means for the suicide cannot be held liable for the murder.
Encouragement to commit suicide could lead to criminal liability. The court held the
voluntary act of the deceased killing themself was not necessarily a novus actus.
S v Hibbert 1979 (4) SA 717 (D) In the case of Hibbert, the court held that the accused was
guilty of murder, despite the fact that the deceased had voluntarily committed the act of
suicide. The court held that the voluntary conduct of the victim did not break that causal
chain of events initiated by the accused. There was a break down in the marital relationship
which resulted in an argument between the husband and wife to ensue. The deceased said that
she will commit suicide by shooting herself. The accused gave the deceased the gun and the
deceased shot herself. The court held that the voluntary act of shooting herself did not break
the causal chain of events, which the accused had set in motion. The other elements of
liability were in place and he was found guilty of murder.
The test for causation
S v Mokgethi 1990 (1) SA 32 (A)
The gunshot wound rendered the deceased a paraplegic. The deceased recovered, and
returned to work. As a result of being a paraplegic the deceased slipped into depression from
which he was slowly recovering. The doctor had instructed the deceased to move around in
the wheelchair seat to avoid developing pressure sores. An investigation revealed that the
deceased failed to follow the doctors instructions and the court accepted that the pressure
sores were a result the deceased’s negligent failure to not change his position in the
wheelchair. The deceased died from septicaemia which resulted from him not following the
instructions of the doctor.
In this case the appellants were charged with murder. The charge was premised on the fact
that one of the accused shot the deceased in the back during a back robbery. The deceased
was a bank teller.

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The premise of the appellants defence was that the bullet wound sustained by the deceased
was not the legal cause of death. The trial court held that the accused were to be convicted of
murder.
In this case the court formulated a broad test for legal causation. On appeal the court held that
the gunshot wound was the factual cause of the death of the deceased. The court also held
that the conduct of the accused did not satisfy the test for legal causation.
The court held that the test for factual causation extends the reach of liability too extensively,
therefore a test for legal causation is required, to limit the liability, based on policy
considerations of reasonableness, fairness and justice. The tests for legal causation which
exist apply a flexible criterion which is applied to determine whether there is a sufficiently
close causal nexus between the conduct of the accused and the ensuing harm. The court did
not accept that only one test should be formulated to encompass all the probabilities which
may occur in future cases, because there are too many factors which may be influential. The
court held that the test for legal causation would not be satisfied if an omission on the part of
the deceased to obtain medical or similar treatment or to follow instructions was the
immediate and direct cause of his or her death, in original injury was not inherent mortal or
was not a danger at the relevant time, and the omission was objectively unreasonable in light
of the circumstances.

The appeal court applied a test such that the test sought to establish whether there was a
sufficiently close nexus between the conduct of the accused and the harmful consequence.
The court also held that the conduct of the accused did not satisfy the test for legal causation.
The test which the court applied was a flexible test. The court held that the deceased
unreasonable failure to follow medical advice introduced a new threat which broke the causal
chain of events between the accused act the death of the deceased. The court concluded that
the deceased’s failure to obey medical instructions was the legal cause of his death. The
appeal against the conviction was upheld and the appellants were found guilty of attempted
murder.
The court did not specifically apply the test for novus actus. However, the courts conclusion
in the case is analogous to the test of novus actus. It is noteworthy to mention that such a
flexible test for legal causation should be followed.
The Mokgethi case and the Tembani case are distinguishable on the grounds of negligence. In
the former case the negligence was due to the deceased’s own failure after the wound had
recovered, therefore the wound was not a substantial and operating cause of death. However,
in the Tembani case the wound had not recovered and the wound was still a substantial and
operating cause of death.
The test for factual causation is a logical and scientific test, based on human experience.
The test for legal causation questions whether it is fair, just and reasonable to hold the
accused liable.

Questions

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Andrew stabs his girlfriend Rachel in the chest with a knife after they argue about his unfaithfulness.
Although Rachel is seriously injured, she is alive when she is admitted to hospital. Unfortunately it is
a Saturday evening, the trauma unit at the hospital is very short-staffed, and the doctor on duty
misdiagnoses the seriousness of the wound. Rachel subsequently dies. When charged with murder,
Andrew argues that the cause of death was not the stab wound, but the negligent treatment Rachel
received at the hospital. Assess Andrew’s liability for murder.

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Crucial questions in respect of causation
In respect of consequence crimes, the element of causation must be satisfied. These are
crimes in which the conduct shall result in an unlawful consequence.
With regard to the doctrine of common purpose, a causal link between each member of the
common purpose and the harmful result need not be established.
Factual causation is assessed by considering the but for test. The but for test holds that ‘but
for the accused’s act (or omission), would the consequence have occurred at all, or have
occurred when it did?’ the answer to which must be negative. If factual causation has been
proved then the next step is to prove legal causation, by establishing a sufficiently close
nexus between the conduct of the accused and the unlawful harmful consequence.
If there is a causal connection between the conduct and the harm then one must question
whether there was a break in the causal chain of events.
The Novus actus interveniens test must be applied. Legal causation is satisfied by taking into
account policy consideration, which are based on fairness and justice.
An important distinction is between a dependant intervening cause and an independent
intervening cause. Only if the cause is an independent intervening cause will it be regarded as
a novus actus interveniens.
Situations related to novus actus interveniens
a. Where an abnormal event is planned, foreseen or foreseeable by the accused then this
event does not break the causal chain of events, it would be fair and just to hold an

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 accused liable in this situation. If the accused did not plan, foresee, or it was
foreseeable then this event would break the causal chain of events. See cases of
Pagett and Lungile.
b. Pre-existing susceptibility to injury or vulnerability on the part of the victim does not
break the causal chain of events. If the injury caused to the victim is not serious, but
the injury causes harm to the victim because the victim is of physical weakness, and
such injury causes the death of the victim, then such a situation of weakness does not
break the causal chain of events. Despite the fact of the unawareness of the
vulnerabilities of the victim on the part of the accused, the conduct of the accused will
still be a sufficiently close causal connection, such that the conduct will be the legal
cause of the ensuing harm. In the case of / R v Blaue the court extended physical
weakness to religious and emotional susceptibilities.

c. Another possibility in respect of causation is when the accused inflicted a mortal

wound against the victim, and the victim dies as a result of negligent medical
treatment then a the negligent medical treatment that follows a deliberate infliction of
a life-threatening wound will not break the causal chain of events.
This was observed in the cases of Tembani, in which was decided based on policy
grounds. These grounds held that the accused would be blameworthy for inflicting an
inherently dangerous wound which would lead to death without medical intervention,
and the lack if medical resources in South Africa.
Negligent medical treatment would be a dependant intervening cause, it would be
dependant on the accused’s initial assault on the victim, this situation would be
different if the victim had recovered and then medical negligence had caused the
death, as observed in the case of Jordan.
In the case of Williams the life support been switched off was the ending of a fruitless
attempt to save the life, and this did not break the causal chain of events. The
switching off of the life support machine was a dependant intervening event.

d. If a person encourages another person to commit suicide, then the conduct of

encouragement will be regarded as the legal cause of death of the deceased. The
voluntary act of a person committing suicide does not break the causal chain of
events, as an independent intervening event, if the accused encouraged the deceased
to commit suicide Grotjohn and Hibbert.
In the case of Mokgethi it was held that flexible test for causation must be applied to
determine if there was a sufficiently close nexus between the accused act and the unlawful
consequence. In the facts of the case, the deceased own negligent actions broke the causal
chain between the accused’s causing the harm and the death occurring.
Other Defences – these are not grounds of justification.
The acts of the accused are not justified it is merely that those acts cannot be prosecuted.
a. de minimis non curat lex: The law does not concern itself with trivial acts. It is not a
ground of justification, but it relates to whether conduct may be prosecuted. It does
not negate unlawfulness. An example would be the theft of a piece of paper. It

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 operates when the DPP has exercised their discretion and decided not to prosecute.
The court will hold that the decision is incorrect to prosecute because of the trivial
nature of the case. That which the accused has done remains unlawful, but because it
is trivial the court will decide that the accused should not be prosecuted.
S v Kgogong 1980 (3) SA 600 (A). – in this case the accused was charged with the
theft of a piece of paper. A security guard had completed an interrogation of a
suspect. The accused had stolen a piece of paper and the court held that the stealing of
a paper is too trivial of a crime for prosecution.
S v Tshabalala 2002 (1) SACR 605 (W); - in this case the accused was charged in a
magistrates court with the theft of ten items valued in total to R59.66c. The court held
that the amount was under R60 and he should not be prosecuted. The matter was then
taken to the high court. The high court held that R59.66c is not a insignificant amount.
The high court held that this case was wrongly decided.
DPP, Eastern Cape v Klue 2003 (1) SACR 389 (E); - this case relates to the driving
with an access level of alcohol in the blood. The magistrate acquitted the accused on
the de minus curat lex principle. The rule is 0.05mg of alcohol in 200ml of blood. The
accused had a blood alcohol level of 0.07mg. the magistrate held that this was trivial.
The matter went on appeal to high court. The high court held that this was not a trivial
matter. The high court held that it was not the magistrates function to hold the conduct
trivial because the legislature already stated that 0.05mg is the limit and driving while
over that limit is an offence.
S v Visagie 2009 (2) SACR 70 (W); - in this case there an argument in a mechanics
workshop. There was a certain level of provocation. One of the men tripped and
injured himself. The court held that this state of affairs resembled one in which two
boys were fight, which is a trivial matter. In respect of the charge of assault the court
held that this was trivial.
FORSA v Min Const Dev 2020 (1) SACR 113 (CC) – this case abolished the right of
chastisement relating to parents. Parents can no longer physically discipline their
children. The only defence available to parents is the de minimus no curat lex rule.
One must determine the characteristics of a trivial assault, e.g. a tap on the hand or a
tap on the bottom regarded as trivial. Technically, the crime of assault permits any
type of contact in order to satisfy the element. However, it may be argued that an
assault is defined in terms of physical contact and also threatening to harm a person,
and that person believes it.
b. Traps: this has not been regarded in South African law. it occurs when the police had
made use of a trap to create an occasion for the accused to commit a crime. When
dealing with crimes like prostitution the use of traps may be permitted. In the case of
prostitution, the client is voluntarily buying services and the prostitute is voluntarily
offering services. Traps have been set in certain situations where it was tempting to
steal these items. The moment the accused lays his hands on the goods then the police
will catch him. Traps may operate in the context of driving above the speed limit.
Traps are set in South Africa in respect of illegal diamond mining. It is difficult to
catch perpetrators committing the crime of illegally mining diamonds. The buyer and
seller of illegal diamonds are both guilty of the crime. The defence of entrapment
seeks to exclude the accused voluntariness because the accused was induced or
coerced into committing those actions by the police officer. In section 252A of the

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 Criminal Procedure Act holds that there should be a exclusionary rule to control the
abuse of the trapping system. This rule would aim to exclude certain evidence from
trial.
The police may only use a trap, and such evidence would be admissible if the police
do not go beyond providing an opportunity for the accused to commit a crime. The
court must consider the nature of the offence, the type of inducement, the degree and
persistence of the trap and whether the trap amounted to an exploitation of the
person’s being trapped emotion or economic circumstances, and whether the person
setting the trap had a suspicion that the person they were trying to trap had previously
committed a similar offence. If there is excessive inducement, then that evidence may
be inadmissible.
The court may allow evidence to be admissible, even though the person’s setting the
trap conduct went beyond providing the person being trapped with an opportunity to
commit an offence if, the evidence was not obtained in an improper way, the
rendering of the evidence would not lead to an unfair trail or hinder the administration
of justice. Even if the evidence was improperly obtained, the court may still allow the
evidence. In making this decision the court must weigh the public interest against the
interests of the accused, the court must consider the nature and seriousness of the
offence, whether it would be difficult to uncover the commission of that type of
offence, and whether any constitutional rights were infringed.
If the trap merely offers an opportunity to commit an offence then it does not provide
a defence to the accused, it does offer a defence if the accused unwillingness to
commit the crime is overcome by incitement.
S v Nortjé 1996 (2) SACR 308 (C) – in this case the person setting the trap has
entered into an affair with the accused. The trap was acting out of emotional
consideration.
S v Hayes 1998 (1) SACR 625 (O) – the persons reluctance to enter into criminal
activities was overcome by persistent persuasion. The accused gave in and was
charged with committing a crime, and the court held that the persuasion had gone
beyond merely providing an opportunity to commit a crime.
In both case the unwillingness of the accused to be involved in criminal conduct was
overcome by other methods.
Section 252(5)(A) of the Criminal Procedure Act states that the person setting the trap is not
criminally liable in respect of their conduct relating to the entrapment, only if that person
acted in good faith.
Entrapment may violate the entrapped persons right to privacy and the right to a fair trial.
In the case of Mendes and Another v Kitching and Another 1995 (2) SACR 634 (E), the court
held that the right of the accused not to incriminate himself or his/her right to silence if not
the issue in entrapment cases. An all encompassing ban on the use of trapping procedures in
order to subvert a fair trial is not justified. Trapping is not unconstitutional and it is a
technique used by the police.

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 Unlawfulness
Unlawfulness and culpability need to be established after the conduct and fulfilment of the
definitional elements of the crime has taken place. The fact that a person’s conduct complies
with the definitional elements does not necessarily mean that the person acting is guilty of a
crime. The definitional elements of murder is the intentional killing of another human being.
However, a person acting in self defence does not act unlawfully and their conduct is
justified. A person may insert a knife into the body and it may satisfy the definitional
elements of assault but if the person is a doctor acting with the permission of the patient then
the conduct of the doctor is not unlawful because he or she is acting with the consent of the
patient. Unlawful does not mean that the conduct must merely be contrary to the law. An act
may either be lawful or unlawful. This means that the law approves or disapproves of a
certain act. Only human conduct may be considered to be unlawful. Unlawfulness may be
excluded because of the presence of a ground of justification. Grounds of justification include
private defence, necessity, consent and official capacity. If conduct exceeds the bounds of the
ground of justification then it becomes an unlawful act. Unlawful conduct is conduct that is
contrary to the legal convictions of society. Grounds of justifications are situations which
occur most often in practise which exclude unlawfulness. The definitional elements of a
crime do not encapsulate the notion of unlawfulness, and therefore it is incorrect to claim that
conduct contrary to the definitional elements is analogous to unlawfulness. When establishing
unlawfulness it is necessary establish that the conduct is against the legal convictions of the
community and it must be established whether the person relying on the ground of
justification is aware of the circumstances which render their conduct lawful. The person
must consciously act lawfully. The accused’s conduct shall remain unlawful if the person
subjectively thinks that there is a ground of justification when in reality there is none, this is
known as putative ground of justification.

Topic 4 - Private Defence.

A person acts in private defence if she or he uses force to repel an unlawful attack which
has commenced or is immediately threatening her or somebody else’s life, property or
other recognised legal interest.
A victim of an unlawful attack against his person, property of other recognised legal interest
may repel the attack using force.
Two philosophies
a. Individualist theory
b. Social theory
Individualist theory

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Justice must prevail over injustice. One cannot yield to an unlawful aggressors attack because
this is the path to submission and slavery.
Social Theory
Unlawful aggressor is seen as a fellow human being. It is better to tolerate the behaviour of
the aggressor instead of inflicting a cost on the aggressor.

South Africa follows the individualist theory because killing in defence of property is
permitted. One cannot act in all circumstances and the law limits the bounds of defence. The
law permits one to use self-help which does not involve using the process of law.
It is not always possible for the courts or the police to provide immediate and necessary
protection to every citizen, therefore one is permitted, within reason, to take the law into their
own hands.
The bounds of defence are limited to prevent private vengeance.
8 requirements for private defence
Conditions regarding the attack
1. There must be an attack – may be a commission or an omission. Fear does not justify
the defence. The attack must be imminent. Fear may be relevant to putative defence.
2. The attack must be unlawful.
A person cannot act in private defence against lawful conduct. A person may not act
in private defence against an act of private defence, but private defence against an act
which has exceeded the bounds of private defence is possible. It is possible to act in
private defence against a person who lacks criminal capacity. A person may act in
private defence in the defence of a third party, even if there is no special or protective
relationship between the defender and the third party.
a. It is not sufficient for the accused to believe the attack is unlawful, it must
actually be unlawful, held in Ntanjana v Vorster Minister of Justice 1950 (4)
SA 398 (C)
b. Cannot defend against unlawful arrest, held in R v Ndara 1955 (4) SA 182 (A)
c. May defend against unlawful arrest, held in R v Hayes 1904 TS 383
d. May use private defence if more force, than necessary is used in an arrest. S v
Aleck 1973 (1) PH H 7 (R)
e. The accused may not use the defence of private defence if the accused elicited
the defence. This means that the accused set up a situation to get an excessive
reaction from the victim in order to kill the victim.
f. The attacker need not have Mens Rea. One may rely on private defence
against a child or insane person.
g. In the case of a pre-arranged duel, there is no question of aggression and
defence because both parties are involved in a unlawful conduct.
h. One may use the defence against the owner of the animal if that animal is used
by the owner to attack the accused.
i. If an animal acts of its own volition, then one may act out of necessity which
is the basis of the defence. The interest of another is harmed.

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 j. If the animal is un-owned then there are no legal consequences, unless it
violates a statutory provision, in which case the defence if necessity.
k. Any legal object may be attacked and may therefore be the basis for the
defence.
l. These interest may be life, bodily integrity or property, held in S v Van Wyk
m. Interest include sexual integrity, as a defence with regard to attempted
sodomy, held in S v Nomahleki 1928 GWL 8.
n. In the case of S v Moekena 1976 (4) SA 162 (O) it was held that a man may
use force to defend the chastity of his wife or sister.
o. May use private defence to protect the interests of a third party. This defence
is limited to certain individuals and it is not available to society at large. It
occurs if the person owes a duty or has a close relationship with the attacked
party.
3. The attack must have began or it must be immediately threatening.
The accused should have already been injured, if not then the attack is about to start
and it is imminent.
a. The speed with which the attack if occurring must be considered to determine
the reasonableness of the defender. It is important when determined the degree
of imminence of the attack.
b. One cannot rely on private defence if there is time to seek other forms of
protection.
c. One may not resort to a pre-emptive attack if one anticipates an attack at some
time in the future.
d. The defender need not wait for the first blow to be struck before defending,
held in R v Hope 1917 NPD 145.
e. If the attack if immediately about to begin then the victim may resort to
private defence.
f. The immediacy of the response to the attack is more important than the
immediacy of the attack.
g. The attack must not yet be completed. Any measure taken after the attack has
ended would be a form of retaliation and not defensive, therefore it would be
unjustified.
h. In the case of S v Moghlowane 1982 (2) SA 587 (T), the victim after being
robbed, went home and collected a weapon to use against the attacker to
recover his property. He went to the home of his robber and he killed the
robber to get his bag. The court held that he act lawfully in private defence.
The court held that his actions were part of the original attack. The court held
that the aggression was continuing therefore the response was continuing. The
court linked his property to his right to dignity, the right to life is informed by
the right to dignity. If the defence continued after the attack has ceased then it
is not justified. The court must consider the ease involved in terminating the
defence.
i. In Re S v Van Wyk the court held that a spring gun could be used in certain
situations.
4. The attack should be directed against the legal interest of the accused party or another
party. Courts have recognised the act of private defence in defence of property and

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 dignity, as observed in the case of S v Van Vuuren 1961 3 SA 305 (E). in the case of
R v Karvie 1945 TPD 159 the defence was recognised against the prevention of an
unlawful arrest. In S v Van Wyk the court allowed the defence against the theft of
property, and in the case of S v Mokoena 1976 4 SA 162 (O) the court recognised the
defence against a violation of sexual integrity.
Conditions regarding the defence.

1. The defence must be necessary to avert the attack.

a. There must be no other remedies immediately available. Consider phone calls,
calling police, going to another room, panic emergency button, fleeing.
b. It must be considered if the defender may circumvent the attack by fleeing.
c. In terms of the individualist theory, the victim has no obligation to flee
because the person is entitled to protect their own interests.
d. In the case of R v Manuel Sile 1945 WLS 134 it was held that if fleeing would
worsen the accused chances of injury then he or she is justified in standing
their ground.
e. It was held in the case of R v Zikalala 1953 (2) SA 568 (A) that the accused
should flee, if it would not expose the defender to greater danger.

f. Case of R v Zikalala 1953 (2) SA 568 (A), the facts

i. The accused stabbed and killed the deceased in a crowded beer hall.
ii. The accused claimed he avoided two thrusts by jumping over a bench.
iii. To repel another attack he opened a small pocket knife and stabbed the
deceased.
iv. The court held that where a man can save himself by fleeing then he
should do so.
v. A person cannot be expected to take flight if fleeing would not allow
him to avoid the danger.
vi. The accused is not bound to expose himself to the danger of being
stabbed in the back.
vii. The court held that the trial court was incorrect to decide that the
accused should have continued jumping over benches because there
was a danger of him stumbling and falling over.
2. The defence must be a reasonable response to the attack. What would a reasonable
person do in these circumstances? The principle of proportionality holds that if one is
been attacked by a certain weapon, example a knife, then they must defend against the
attack with that same type of weapon.
a. The principle of proportionality to assess the reasonableness of the response
has been rejected in the case of Ex parte Die Minister van Justisie: In Re S v
Van Wyk 1967 (1) SA 488 (A). The facts of which follow.
i. Van Wyk owned a shop that had been broken into many times to the
extent that he was on the brink of bankruptcy.
ii. Van Wyk attempted many ways to circumvent the burglaries, and he
contacted the police.

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 iii. Van Wyk set up a shotgun that would fire upon the person who tried
entering through a certain window.
iv. He rigged the shotgun such that the intruder would be shot in the legs.
v. He posted a warning sign outside the shop saying that the person
would be shot in the legs if they attempted breaking in and that they
entered the store at their own risk.
vi. A man broke into the shop and sustained fatal injuries.
vii. Van Wyk was charged with murder but he was acquitted after raising
private defence.
viii. Two questions put to the court.
1. Can a person rely on private defence in defence of property?
2. Whether Van Wyk exceeded the bounds of private defence.
Finds of the court.
It is permissible to use spiked fences, electric fences and traps in
anticipation of future danger, provided that.
 The threat must be sufficiently serious to warrant the use of such
methods. The defender must limit himself to the least dangerous
response that would be effective.
 The defender must make notice of a warning if reasonably possible
to do so. It may not be reasonable for a defender to call out an issue
a warning or to fire a shot. By doing so the defender may endanger
himself further, if he has to issue a warning.
 The value of the property must not be minimal. The value of the
property must be assessed in the circumstances. The value of the
property is important but proportionality is not a requirement for
the defence. The rights of the defender and the attacker are not
similar, example the life of the rapist and the chastity of the woman
victim.
 If an attacker fails to take heed to the warnings and resistance of
the defender such that his attack can only be repelled by the most
extreme methods can be said to be the author of his own
misfortune.
 If a person is regarded as an outlaw then the court must take the
stance of the individualist theory.
 The court held that if there is gross inequity then justice should
prevail over logic.
 The court used the test of the reasonable man, that is, if a
reasonable man would have acted in the way the accused did, then
the accused acted lawfully.
 If the accused has extra knowledge then this knowledge should not
be of benefit to him.
 Courts do not consider the proportionality principle but consider all
factors to determine whether the accused acted in a reasonable
manner when defending himself.

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  The court considers age, means at their disposal, nature of threat,
value of interest threatened, persistence of attack and the result of
the defence. No precise proportionality is required.
S v Van Wyk pre-dates the current constitution but it has not been expressly overruled.
In addition to the above mentioned requirements for the defence, the defence must be
directed against the attacker. The attacked person must also be aware that he or she is acting
in private defence. Accidental private defence does not exist. This prevents a situation known
as provoked private defence in which the attacker provokes the victim into attacking first so
that the attacker can rely on private defence. This is not true private defence. The defence is
not warranted in case where the act of defence was purely coincidental. This occurs when the
accused would attack the so called “attacker” and the accused would be completely unaware
of the “attackers” aggressive intentions.
Other factors to determine reasonableness: See Ntuli case – these factors laid down in Ntuli.
a. Relative strength of parties.
b. Gender of parties.
c. Means at the disposal.
d. Nature of the threat.
e. Persistence of attack. Does not need to wait until attacked.
f. Value of the interest been harm – bodily harm is always serious.
g. Duration of attack.
h. Result of defensive action.

Excessive use of force

In the case of S v Ntuli the court held that is a person’s response is reasonable then the force
and intention are both lawful. If the person reasonably foresees that the victim might die as a
result of their conduct but nevertheless continues then the accused may be guilty of culpable
homicide.
Case: S v Ntuli 1975 (1) SA 429 (a) 436
Facts
Ntuli has killed his mother-in-law, a frail old woman. She had attacked him first but he had
used so much force on her that he had broken her jaw and cracked her skull. He exceeded the
bounds of private-defence. He was convicted of culpable homicide.
Finding of the court. The court considered the judgment of R v Patel 1959 (3) SA 121 (A) in
which that court held if a person is faced with multiple alternatives in a moment of crisis
should not be judged as though he had time to consider all the pros and cons.
The accused shot and killed the deceased and his defence was that deceased had initiated a
murderous attack upon his brother with a hammer. The accused claimed that he shot the
deceased in defence of his brother. The accused was threatened by an emergency which was
not of his own doing.

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Other legal sources – Defence of property
1. In the case of S v Walters 2002 (2) SACR 105 (CC) the court held that the killing in
defence of property may not be aligned with the constitution because the right to life
is paramount. In South Africa it is reasonable to presume that intrusions are
accompanied with serious crime, given the high crime rate and high rate of violent
crime in South Africa. Killing in defence of property may be relied upon when there
is the danger of harm to the property and the person.
The case of S v Van Wyk was overruled by Walters.
Facts: There was a break-in at a bakery owned by a son and father. When the burglar
broke-in, he was shot dead. The father and son were charged and they raised section
49(2) of the Criminal Procedure Act as a grounds for justification. Section 49(2)
provides the police with legal justification to use force in carrying out arrests. The
legislation indicates the degree of force that the police are allowed to use. Citizens are
also allowed to make arrests. Section 49(2) sets out the circumstances when deadly
force may be used. Section 49(1) gives police the authority to arrest criminals for
committing crimes. The purpose of the arrest is to bring individuals before the court
for trial. If an arrestor attempts to arrest a suspect and the suspect resists the attempt
of flees and he or she cannot be arrested without the use of force then the two owners
of the bakery may effect the arrest using force only as is reasonably necessary and
proportional in the circumstances to overcome the resistance by the perpetrator. The
two accused may have effected a citizens arrest by using force. If the suspect of the
thief poses the threat of serious violence then to them or they have reasonable grounds
to believe that the thief has committed a crime involving serious bodily harm.
The court held that section 49(2) is inconsistent with the Constitution, and it violates
the right to life, the right to dignity and the right to bodily integrity.
This case had invalidated the rule which was held previously, that is that one may kill
in defence of property. This is a problem in South Africa because of our exceptionally
high crime rate. Usually in the case of robberies, there is a threat of serious bodily
harm. Killing in defence of property is allowed only if the threat extends beyond that
of property and towards a persons body or life been harmed.
This view is supported by the international law instrument below. Deals with war
crimes and apartheid.
2. In international criminal law the Rome Statute which sets out the general provisions
in terms of criminal responsibility. South Africa has ratified the Rome Statute in terms
of Article 31(1)(c), it holds that a person shall not be criminally responsible if at the
time of the defensive action they acted reasonably to defend property which is
essential for the survival of that person or another. The defensive action must be
against an imminent and unlawful use of force in a manner that is proportional to the
degree of the danger to the property protected. In terms of the Rome Statute the
accused’s survival must be dependant on the property that has been threatened.
3. This article was operational in the case of Sudan Government v Musa Girbirl Musa
( 1959 SLJR 12). The accused lived in an area with scarce water supply. The accused
managed to track down the thieves by following the camel tracks. The accused
demanded the return of his water. The thieves refused to return the water and
threatened to shoot the accused if he did not leave. The accused attacked one of the
thieves when that thief dismounted his camel. The other thieves shot at the accused,

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 but the accused continued his attack against the thief with an axe, despite being
injured from the gunshots, until the deceased died. The court held that the accused
was not guilty of any offence because he killed the deceased in a rightful defence of
himself and his property. Water is invaluable in Eastern Darur, the accused life was in
danger.
4. The reason of the Musa case is consistent with the find in the case of Mogohlwane
supra, which suggests that the defence of property and life are closely connected.
5. The constitution sets a hierarchy of rights, with the right to life being a foundational
right, therefore the justification in S v Van Wyk is difficult to explain. In this case the
killing is justified because it was to retain and secure the enjoyment of the right to
property and discouraging others from committing the crime. Loss of property may be
recovered by a human life cannot be recovered once it is lost.
6. It must be considered if less harmful methods of protection are available, and it was
suggested that police services and private security firms exist.
7. The unqualified nature of the right to life in the constitution suggests that it is worthy
of a wider interpretation than a mere physical existence. This signifies a certain
quality of life.
8. In the case of S v Makwanyane paragraphs 326-327 it was held that the right to life in
the Constitution was not merely to enshrine the right to existence. The rights to
human dignity and life are intertwined.
9. The right to life is more than existence, it requires a person to be treated with dignity.
Without dignity a human life would be diminished. The victim of the robbery in S v
Van Wyk would have been in financial ruin. It is not correct to state that the robbers
right to steal is greater than the right to protect one’s private property. The value of
the property was not insignificant.
10. It is necessary to determine the interests threatened by the unlawful conduct. The
victim was facing financial ruin therefore his dignity had been threatened.
11. It may be argued that the intruders right to life is forfeited when they continue to
commit the action of breaking in.

Test for private defence.

The test for private defence must be determined objectively. In the case of S v Motleleni 1976
(1) SA 403 (A) it was held that it must be determined what type of conduct a reasonable
person in the position of the accused would have done in light of all the circumstances. The
reasonableness test is used to ascertain the legal convictions of the community. The court
must be guided by values and norms underlying the Constitution when conducting such an
enquiry.
Such an approach must show regard to all the circumstances and perceptions of the accused.
Section 9 of the Constitution requires that the courts show regard for the circumstances of the
accused.
The person acting in self-defence may not benefit from prior knowledge about his attacker
because a reasonable person would not have such knowledge.
Battered woman and a duty to retreat.

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The underlying premise of private defence is that the accused is allowed to take the law into
their own hands. Justice should not yield to injustice. The defence deals with the protection of
justice in circumstances in which the police cannot perform their task because of their
absence.
The court must examine the extent the law was effective in preventing the commission of
unlawful attacks, the freeing of the abused from the attacks and their impact.
It had been questioned whether an abused woman has a duty to flee the attack and not defend
herself by killing. It is argued that there is no duty upon the attacked person to flee because
this would undermine the essence of private defence. Justice must be upheld and not a
capitulation of injustice.
According to Burchell the courts are of the view that the attacked person must flee if it is not
dangerous to do so. He also reasoned that there is no duty to retreat. The consideration of the
court regarding whether a battered woman should or should not have fled is important when
determining if the abusive woman’s defensive act was allowed by the law.
In the case of Engelbrecht Due to the hidden nature of domestic violence the court was
cautious to require that the abused woman and children should vacate the home leaving the
abusive spouse in full occupation.

Fleeing is not only thought to be leaving the home but to also include other efforts made,
such as contacting the police, family courts, shelters and family and friends. One must
consider if the woman had an alternative to killing the deceased at the critical moment. It was
held in Lavallee v The Queen that her failure to leave early supports the proposition that she
could have left at the critical moment. The court should be cautious when judging according
to the types of efforts taken by the woman to escape the abusive situation. Judgement should
not be passed on the fact that the battered woman stayed in the relationship and if she had
stayed in the relationship, she does not forfeit her right to private defence.

Proportionality and the battered woman

The circumstances of the abused woman must be considered. That is
i. Ages of parties
j. Relative strengths
k. Gender socialisation
l. Nature of their relationship
m. Power relations on an economic, sexual, social, familial, employment and
religious level
n. Nature, duration and extent of abuse.
o. The impact on the body and mind of the victim.
p. The possibility of other authorities to intervene and terminate the abuse.
q. The extent to which it is possible for the victim to access the above channels.

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The court held that in order to determine if the accused conduct were reasonable, one must
consider the objective and subjective elements of the situation. Placing an emphasis on
individual circumstances subjectivises the test for self-defence. If this is correct then the case
of Engelbrecht would have been dealt with as an instance of putative self-defence.
Case of S v Steyn 2010 SACR 411 (SCA)
Facts
Mrs Steyn shot and killed her ex-husband, who abused her physically and mentally over the
years. She had been abused for many years, but she moved back in to her husbands home due
to financial reasons. Whilst preparing food the woman said something which upset the
husband, he then chased her into the room and he told her to stay there.
The accused contended that the ex-husband was drinking and was in a bad mood on the night
in question. He swore her and assaulted her. She took refuge in the bedroom and the deceased
told her to stay there. The accused found a gun for protection and went to the kitchen to get
food, she had to eat because she needed to take medication. When the deceased saw her he
confronted her with a knife shouting to her that he was going to kill her. She shot him once in
the chest, killing him. She was charged with murder.
The trial court held that the accused acted unreasonably because she placed herself in a
situation in which she would have to use the gun as she knew that the deceased was in a bad
mood. The trial court held that she could have avoided the situation be telephoning someone
for assistance before leaving the room. The court held she acted negligently and convicted
her of culpable homicide. The trial court held that the accused placed herself in a dangerous
position, the court held that she knew her husband was in a bad mood and she should not
have antagonized him.
On appeal, the SCA had to determine whether there was a reasonable balance between the
attack that occurred on her and the defensive act. The court questioned the accused exceeded
the bounds of private defence. The court held that the accused acted reasonably. The SCA
held that it is impossible to determine a precise test for unlawfulness and that each case must
be determined according to its own circumstances.
The court must consider all circumstances. It is not correct for the state to contend that the
accused could have avoided danger by staying in her room, holding that the deceased was in
close proximity to the accused and the imminence of harm was so close, retreat may not have
offered her a safe haven.
The state also rejected that argument that the accused was a former reservist and she should
have fired a warning shot or dissuaded the deceased.
Her response was in light of the fact that she had been abused for many years and she was
scared by him. The SCA rejected the trial courts conclusion that she acted unreasonably
because she was lawfully entitled to get food in her own home. She could not be expected to
call for assistance every time she needed to do something. The court held that she acted in a
situation of extreme stress and personal danger, her life was in danger and she acted
reasonably. The court held that she acted reasonable because of the proximity of which the
attack occurred. The attack on her was imminent.

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Battered woman and private defence. {Summary}
Definition
Can a woman resort to force to repel an unlawful attack on her right to life and bodily
integrity.
Elements
The perceptions of the accused while being a victim of abuse will be of importance.
Section 9 of the Constitution requires that courts show regard for the particular circumstances
of the accused. It is noteworthy to mention that the test is an objective test, that is that
test for private defence is an objective. The reasonable person test is employed in
these circumstances and the person acting in self defence may not benefit from prior
knowledge that the defender has in respect of the attacker. Therefore, a reasonable
person would not have prior knowledge about the attacker. `
The courts apply a more qualified objective test for self-defence in respect of the abused
woman.
In the case of R v Patel the court held that when a person who is faced with a multitude of
alternatives at the critical moment then the defender should not be judged as if the
defender had time to weight up all of the pros and cons.
 ** Abused women can rely on private defence as they generally tend to act in non-
confrontational situations (such as when abuser is sleeping/ busy doing something
other than attacking the woman)
This woman would probably be suffering from battered woman syndrome or post traumatic
stress disorder.
This is caused by two factors, a cycle of violence and learned helplessness.
There are three stages to the cycle. The first is called acute tension building, which involves
verbal abuse and slight assault. The next phase is called tension release in which the abuser
physically abuses the victim. The final stage is called honeymoon in which he apologizes for
his conduct.
This develops something called learned helplessness and it changes the woman’s perspective
due to PTSD and she then realises she can never leave her abuser.
The case of S v Engelbrecht recognised abuse and its effects, and relaxed the traditional
elements of private defence.
The Reasonable person test.
The judge held that a reasonable woman must not be included in the deliberation and it is part
of the objective standard of a reasonable person as much as the reasonable man. There is a
strong justification to consider the effects of abuse upon the psyche of the woman.

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  Abused women can rely on private defence as they generally tend to act in
non- confrontational situations (such as when abuser is sleeping/ busy doing
something other than attacking the woman)
 They tend to suffer from BWS (a subcategory of PTSD)
 Which is caused by two things: cycle of violence theory and learned
helplessness
 The cycle consists of three stages: acute tension building (where he starts
verbally abusing her and slight assault), tension release (physically attacks)
and honeymoon (feels sorry for what he’s done and apologizes, promises not
to do it again)
 This cycle creates something called learned helplessness where the woman’s
whole outlook (how she thinks is changed due to PTSD and she realises she
can never leave her abuser
 The case of S v Engelbrecht recognized abuse and its effects and relaxed the
traditional elements for private defence so her set of circumstances would
make it more likely she could possibly rely on the defence.

S v Engelbrecht 2005 2 SACR 41 (W) case

Woman was in a controlling relationship with her husband. She had attempted to
leave her husband. She wanted to leave him because he was physically and
mentally abusing her. She moved to another town, her husband would then find her
and bring her back home. He would go to her work and stalk her. He would look into
the windows at her work to see if she was actually at work. He would insult her
integrity and dignity. On the day she killed her husband, her husband had been
watching pornographic scene, he then decided that he wants to act out the scene
with his wife. He calls her to do certain actions. The wife was afraid and she
complied with the husbands instructions. While acting out the scenes their daughter
walks in the room. This upsets the wife because she is very close to her daughter.
She was feeling humiliated due to the fact that she had been forced to perform these
scenes and because her daughter had scene her in these comprising positions.
Later that evening, while her husband was sleeping the accused takes thumb cuffs,
which renders the hands of the wearer useless, and puts it on her husbands hands.
She then places a plastic bag over the head of her husband. She was subsequently
charged with murder.

The court must consider the type of abuse and how long the abuse was going on for.
Court must consider the impact that the abuse had on the woman, that is the
battered woman syndrome.

The traditional elements and test for private defence have been relaxed by S v
Engelbrecht 2005:

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Only applies in the case of an abused women.
Reasonable person test

 Judge said the reasonable woman must not be forgotten in the analysis and
deserves to be as much part of the objective standard of a reasonable person
as does the reasonable man
 Therefore there is strong justification for focusing on not only specific form
which the abuse may have over time and in particular circumstances, but
pertinently on the impact of abuse upon the psyche, make-up and entire world
view of an abused woman.”
The abused woman case changed the reasonable person test, to the test of the
reasonable abused woman perspective.

(1) Is there an attack?

The “attack” element is no longer one incident of abuse but a series of a series of
violations or an ongoing cycle of maltreatment.” In normal private defence there is an
attack. In cases of domestic violence, the courts do not view it as one attack. Due to the
context or history of that woman, the court does not view the attack as an isolated incident.
It is viewed as a series of violations that has been occurring against the woman. It is an
ongoing violation of the woman’s rights. The attack element is no longer one incident of
abuse. The attack element forms part of a series of violations.

(2) Is it unlawful

 Viewed from her perspective yes. Although the attack might be over and the
woman’s act may be viewed as retaliation, in the case of the abused woman it
is not unlawful because the violence if ongoing.

(3) Has the attack started or is it going to start?

 The requirement is now the attack is inevitable (he will abuse her we just
don’t know when)
 If we expect her to wait to act we are sentencing her to murder by instalment,
one day her husband will kill her. R v Lavallee – slowly abusing a person over
a period of time. The person would not be in the same physical condition as
compared to the time when the attacks began.
 The attack is inevitable, he will abuse her and it is merely a matter of time. If one
expects her to wait then she is been sentenced to murder in stages or murder by
instalment.

(4) Has a legal interest of abused woman being threatened?

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  Possibly right to life (section 11), section 9 dignity or section 14 (right to bodily
integrity) Right to bodily integrity in terms of section 12.


(5) Was the abused woman’s defence necessary? – conditions relating to the
defence.

 Was it necessary for her to act as she did, it must be determined whether
there is a duty to flee
 Two opposing theories, no duty to flee as it goes against individualist
approach justice should not yield to injustice but also
 Is view that courts expect you to flee unless it exposes you to greater danger
(R v Zikalala: stab in the back) One must first determine whether there existed a
duty to flee upon the woman. There are two opposing theories in this regard. The
individualist theory holds that justice should not yield to injustice. The other theory,
which was held in the case of R v Zikalala, holds that the courts expect you to flee
unless it would expose the person to greater danger.

 To determine whether she should have killed court will look at normal legal
channels: efforts taken to leave abuser (e.g did she get court orders, did she
institute divorce proceedings, did she try to leave a number of times etc) The
court must consider whether the woman utilised normal legal channels and whether
there were any efforts taken to leave the abuser. Examples include obtaining a court
order or instituting divorce proceedings or trying to leave the man on numerous
occasions.

 But we must take cautionary approach in looking at methods/avenues she

took to leave: shouldn’t pass judgment on fact she stayed and she does not
forfeit her right to rely on self-defence because she stayed
 Due to “hidden” or “concealed” nature of domestic violence which is frequently
confined to the privacy of the home, she was cautious about requiring the
abused woman (and her children to vacate their home leaving the abusive
spouse in full occupation. - S v Engelbrecht 2005 2 SACR 41 (W) Domestic violence
has a hidden or concealed nature which occurs in the privacy of the home. The court
was cautious to require that the woman and her children vacate the home.

 The courts will look at efforts she made to leave including approach police,
family violence courts, shelters, going to friends.
 The court cannot conclude that she forfeits her right to private defence
because she does not leave her home and flee. Procession must continue with
caution as the woman is entitled to rely on self-defence even though she stayed with
the abusive man.

(6) Reasonableness of her actions

the courts will look at her particular circumstances and consider :

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 (1) Nature duration and development of their relationship
(2) Content of their relationship including power relations on economic sexual
social and family level
(3) Nature extent duration and persistence of abuse
(4) Purpose of abuse or what abuser seeks to achieve
(5) Extent to which it was possible for state to intervention to stop abuse
(6) Can the victim in fact access these possible avenues of escape
(7) The impact the abuse has on her mind, heart and spirit. Suffering from PSTD
then the abuse has changed her worldview.
(8) Extent of which it is possible for the state to intervene to stop the abuse.
(9) Is it possible for the victim to access these possible avenues of escape.

There are developments in the reasonable person test and private defence which introduce
problematic deliberations.
a. The test for private defence is now partly objective and partly subjective.
b. By place emphasis on the accused’s individual circumstances the test shall be
subjectivised.
c. Justifications ground are not to take subjective elements into consideration. A persons
conduct should remain unlawful but they lack moral blameworthiness.
d. If this were correct then the case of Engelbrecht would have been dealt with as a case
of putative private defence.
e. Putative private defence, was held in the case of De Oliviera, to be of assistance to an
accused who honestly believes that his life was in danger but when viewed
objectively is was not.
f. This honest, but incorrect belief would negate the intention necessary to commit the
unlawful act.
g. The test for intention is subjectively assessed. The focus is the woman’s subjective
state of mind. This test does not concern itself with what a reasonable person would
have done in the same circumstances.

Putative Private Defence.

If the courts reject the argument of a battered woman and hold that she may not rely on
private defence and that her was unlawful then she may rely on putative private defence. The
court must determine if a reasonable person in the position of the accused would have acted
in the same way as the accused. This must not be confused with the test for negligence. The
test is not whether the judicially attributed characteristics of the reasonable person have been
met, but rather on an objective assessment of the accused’s conduct, can the accused be held
to have acted lawfully. The court must place itself in the position of the accused to determine
reasonability, and the court should not question whether a reasonable person in that position

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would have acted in a manner akin to the accused. A person put in such a situation cannot
weigh all the pros and cons before making a split-second -decision.
In the case of S v De Oliviera 1993 (2) SACR 59 (A) 63 the court held that such a defence
will be useful to an accused who honestly believe his life is in danger, but when viewed
objectively, it is not.
This belief would eliminate the necessary intention to commit such an unlawful act.
The focus when determining whether intention existed is to delve into the woman’s
subjective state of mind. If the woman was under an unreasonable belief then it is of no
consequence because the inquiry is not analogous to that which a reasonable person would
have done in the same circumstances.
The issue is not whether the accused woman acted unlawfully but it shows regard to her
culpability. If the woman does not have the requisite intention to commit murder, then she
will be acquitted.
The woman may still be convicted of culpable homicide, because the fault required for this
conviction is negligence and not intention. The test is whether a reasonable person would
have foreseen that their defence was not lawful. A reasonable person would have foreseen
that to resort to that self-defence would be unlawful, the accused would be negligent if failing
to do so, and would be guilty of culpable homicide.
Any issue relating to culpability is dealt with in terms of putative self-defence, which is
assessed subjectively. This means from her point of view she must have truly believed that
her life was in danger, but when viewed objectively it was not.
Defence is expected to operate within the parameters set by the law. objective elements of
criminal liability are assessed in terms of actus reus and subjective elements are assessed in
terms of mens rea.
This poses a problem because to alter the self-defence standard to accommodate the actor’s
personal psychology undermines the essence of self-defence as a justification.
If the objective test does not retain its character then it will become difficult to distinguish
between self-defence and putative self-defence.
If courts have to consider every factor of the accused into consideration, then the court will
have no choice but to hold that they acted as they did and they could not control themselves.
Putative Private Defence. Defences
The difference between private defence and putative private defence were established in the
case of S v De Oliveira.
It hold that a person who acts private defence act lawfully if his conduct satisfies the
requirements for that defence and he or she does not exceed the limits provided for by such a
defence. The test for private defence is objective. This tests places a reasonable person in the
position of the accused and questions whether the accused acted in as a reasonable person
should.

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In respect of putative private defence, the issue is not unlawfulness but culpability. If the
accused honestly believes that his life or property are in danger, but when objectively view it
is not, then the defensive steps he takes cannot be regarded as private defence. If he acts in
this way then his conduct is unlawful. However, the incorrect belief in respect to the danger
may exclude culpability. Intention is excluded and at worst he can be convicted for culpable
homicide.
Case: S v De Oliveira 1993 (2) SACR 59 (A)
The appellant in this case was convicted of murder and two counts of attempted murder. The
evidence revealed that the appellant and his wife lived in a dangerous area where robberies
and housebreakings were not uncommon. Their house was secure and burglar proof.
Vusi, an employee of the appellant, lived at the back of the home. He and two of his friends
arrived at the home and wanted to get into Vusi’s room. The driveway gate which led to
Vusi’s room was locked and Vusi knocked on the gate in an attempt to get the attention of the
appellant and his wife. However, the appellant and his wife were sleeping.
The appellants wife was awoken and told the appellant that there were unknown black men
outside the house because she heard a noise outside. The appellant his wife was safe in his
room, therefore no reasonable person would believe that their lives are in danger. The
appellant picked up his pistol and shot 6 shots in the direction of the driveway from the
bedroom window. Vusi’s friend was killed and Vusi was injured.
The appellant raised the defence of putative private defence.
The court rejected this defence and found that in the circumstances the appellant could not
have entertained the honest but incorrect belief that he was in private defence. The court held
that there was no indication of any attack or imminent attack on the person or property. The
appellant was in a situation of comparative safety within his bedroom, he was in a burglar
proof house and he had a gun. The court held that it is inconceivable that the appellant
believed he was entitled to shoot in the direction of the people outside without firing a
warning shot. The appellants appeal against the conviction was accordingly dismissed.
Case: S v Dougherty 2003 (2) SACR 36 (W)
Two guests of the appellant had been assaulted by the deceased and another Dougherty after
they had left a party been held by the appellant.
The appellant was concerned and he went to investigate the incident with his firearm, during
which time he encountered the two assailants, the deceased and another Dougherty.
The deceased advanced towards to appellant and the appellant then fired a warning shot. The
deceased continued to advance towards the appellant and then appellant fired numerous shots
in the general direction of the deceased and another Dougherty. The accused was not young
and he was in his 60s. He was subjectively afraid of his life because the men continued to
advance despite the warning shots fired.
In the court a quo the appellant was convicted of murder and attempted murder. The appeal
court held that if the person honestly but incorrectly believed that his life was in danger and
that he was justified in killing another then intention is excluded. In such circumstances the

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conduct would still be unlawful, and therefore culpability would remain in the form of
negligence.
The appeal court held that a reasonable person in the situation of the appellant would not
have fired numerous shots in the direction of the deceased, but rather would have fired non-
fatal shots to incapacitate the would-be attackers. A reasonable person would have only shot
to kill if it was clear that he would be killed if he did not shoot to kill.
The court held that negligence had not been excluded and the accused was guilty of culpable
homicide.

Case: S v Joshua 2003 (1) SACR 1 (SCA)

Case: S v Sataardien 1998 (1) SACR 637 (C)
In the above case it was held that mistake may exclude intention and negligence and therefore
it is a double defence.
Case: S v Naidoo 1997 (1) SACR 62 (T)
Naidoo, aged 19, was in the kitchen of his home with his sister and mother, after a family
function. Naidoo heard someone rattling the security door and he called out three times but he
got no reply. Naidoo was afraid because there were attempted housebreaking and his car was
broken into. He got his gun and went to the kitchen door and opened it slightly but he could
not see any person. He heard a rattle at the gate and fired a shot. Unfortunately, Naidoo had
shot and killed his father.
The court held that Naidoo genuinely believed that he was under attack. He lacked intention
in respect of unlawfulness. He believed that he was acting lawfully. He lacked the intention
to commit murder, and he thought that he was being attacked by a stranger. He lacked the
culpability element in this regard, and therefore could not be convicted of murder.
The court further held that a reasonable person in the circumstance would not have shot to
kill. The court found that he was negligent and convicted him of culpable homicide.
Case: Coetzee v Fourie and another 2005 (1) SACR 382 (SCA)
The plaintiff had approached the defendant, on the defendants’ property which it was dark.
The defendant saw the plaintiff for the first time when the plaintiff was approximately 7.5
meters away from him. The defendant perceived the plaintiff approaching with his arms
swinging in an exaggerated fashion and fist clenched. The plaintiff was wearing trousers with
the bottoms of the trousers tucked into his boots. The defendant requested the plaintiff to
identify himself but there was no reply from the plaintiff and the plaintiff continued to
approach the defendant. The defendant shot and injured the plaintiff.

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The court held that none of the acts committed by the plaintiff indicated that the defendant
had been in danger of an imminent attack. The court held that the passer-by could have been
a person asking for directions. The manner in which the plaintiff approached the defendant
was not overly threatening. The defendant had no reason to believe that the person
approaching was armed. The failure of the plaintiff to identify himself was not necessarily
indicative of imminent danger.
The court held that the defendants fright was understandable but it did not justify him
shooting the plaintiff. There was no reasonable grounds for believing that he was in imminent
danger of being killed or injured. A reasonable person in the position of the accused would
not have shot the plaintiff, therefore the defendant acted negligently.
Putative Private Defence – Continued
Generally, grounds of justification exclude unlawfulness or render unlawful conduct lawful.
It operates to justify the use of force to repel the attacker to protect your interests to either
life, physical integrity and property.
All the elements of the defence would have to be satisfied. In respect of putative, the accused
lacks knowledge of unlawfulness. This is because the accused subjectively believes that his
life or property is endangered but objectively viewed this is not the case, therefore he lacks
the intention to commit the crime. The issue in putative private defence is not unlawfulness
because the person thought that they are acting lawfully by defending themselves, therefore
unlawfulness is excluded. However, the issue in question with regard to putative private
defence is cupability.

Consider the traditional elements for private defence

a. Was there an attack?
In the case of De Oliveira the court held that the fact that a person is afraid is not enough to
justify that person from acting in self-defence. However, this may be relevant to putative
private defence. If a person shoots at a family member because they think that the family
member is an intruder, then this is a mistake as there is not attack.
b. Unlawful
There was no attack therefore there is no justification for the conduct an the conduct remains
unlawful. However, the person lacked knowledge about that unlawfulness and that accused
believed that they were acting lawfully. This does not mean that the conduct is now lawful, it
means that the conduct was not accompanied by necessary intention to commit the crime.
The person may still be held liable. A person may only have knowledge of unlawfulness if
they believe that they are acting unlawfully. Putative private defence excludes the element of
culpability. Test each type of intention, direct, indirect and eventualis, person may be
convicted of culpable homicide.
c. Has the attack begun or is it imminent?
There was no attack except in the persons own imagination.

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 d. Was a recognised legal threatened?
No because the accused was under the false impression that they were going to be attacked
but it was a mistaken belief.
e. Defence must be necessary to avert the attack.
The general rule is that the accused must not must not act in excess and the accused should
only conduct himself in a manner that incapacitates the attacker.
In the case of Van Wyk it was held that the accused must not to more than is necessary to stop
the attack. The assailant must be given a warning that action will be taken against them, and
the value of the interest threatened must be substantial.
A different view is that one is not required to flee, as per the individualist theory, but it was
held in the Zikalala case that one should flee unless it would expose the person to more
danger. The accused is not expected to weigh each pro and con of the situation nor should the
court act as armchair critics.
f. The defensive act must be a reasonable response to the attack.
Proportionality has been rejected and the courts employ the reasonable persons test in cases
involve private defence. However, in cases which involve putative private defence
unlawfulness is not the contentious issue, but culpability is, therefore the test is subjective.
The court considers what was going on in the mind of the accused at the time of the incident.
In putative private defence the accused honestly but incorrectly believes that his life or
recognised legal interest is threatened. The mistake excludes intention and intention is an
essential element of murder, therefore the person may not be guilty of murder.
Furthermore, the accused may not have conformed to the standard of the reasonable person
and by firing the gun acted negligently. In this situation the accused will be guilty of culpable
homicide.

Legally protected interest.

Section 7(2) of the Constitution requires that the state promote and fulfil the rights in the Bill
of Rights.
Section 9(1) and (2) state that everyone is equal before the law, and has equal protection and
benefit of the law. Equality includes the full and equal enjoyment of all rights.
Section 10 provides that everyone has inherent dignity and the right to have that dignity
respected.
Section 12 deals with the freedom and security of the person which covers the right not to be
deprived of freedom arbitrarily or without just cause, to be free from al forms of violence,

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either public or private; right not to be treated in an inhumane or degrading way; the right to
bodily and psychological integrity.
In the case of S v Baloyi and Others 2000 (2) SA 425 (CC) the court held that domestic
violence raises a number of constitutional concerns. The court held that the constitution has
to be interpreted such that it imposes on the state a duty to protect every citizens right to be
free from domestic violence on one hand. The state has the duty to deal with domestic
violence; protect the rights to enjoy freedom and security of the person and bodily and
psychological integrity, not to be torture or treated in an inhumane and degrading way.
In comparison to this South Africa has a pervasive and overwhelming gender-specific type of
domestic violence which reinforces the patriarchal domination in a brutal form. The non-
sexist society promises in the Constitution, the right to equality and the right to non-
discrimination are not respected and upheld when a spouse batters their spouse and enjoys
immunity.
Case S v Pistorius (CC113/2013) [2014] ZAGPPHC 793
Facts
Ms Steenkamp who was in a relationship with an Athlete for three months was shot four
times and killed. According to the neighbours statement to police they had heard screaming
and shouting, and the police officers stated that they had visited to house before due to
domestic violence. Police are investing Pistorius’s links to other females to determine if it
would have any bearing on the case. His voice and text messages were to be examined. The
athlete commented on twitter that he had mistaken his washing machine for an intruder and
he had to enter ‘full combat recon mode’.
Legal question is to determine whether Oscar was the victim of an unlawful attack on his
person or property such that he had to resort to use force to repel an attack, The answer is he
did not he satisfy the requirements for private defence.
Conditions relating to attack.
There must be an attack, a positive act or omission which was directed at the accused. He was
not being attacked when the facts are viewed objectively. He was not responding to an attack
but he thought that his girlfriend was an intruder and she had startled him. The state can
prove that the accused had the direct intention to kill the deceased because this is what he
intended. Evidence showed that the accused and the deceased were involved in a heated
argument on the night in question and that the accused, had probably, threatened the victims
life previously. The state questioned why the deceased had locked the door at 3am in the
morning implying that the deceased had done so with a purpose. The accused was not
allowed to explain this point. The state questioned why an intruder would lock himself in the
bathroom and this raised an inquiry to question why the accused did not have regard to the
whereabouts the deceased. The state suggested that the claim of the accused, that is, thinking
that his girlfriend was an intruder was pre-planned by the accused, thereby showing further
evidence of premeditation. The state could prove intention via Dolus eventualis. The accused
did not intend to kill but he foresaw the possibility that someone would die if he shot at the
door, and he nevertheless continued with his conduct.

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The accused claim that he was fearful is not sufficient to warrant the justify the defence. In
the accused’s statement he states that he was sleeping next to the deceased when he awoke
and went to the balcony to close an sliding door and get a fan.
He then heard a noise and felt scared because he thought there was an intruder in the home.
This was relevant to putative self-defence because intention is the standard upon which that
defence is premised. Intention has to be determined subjectively, the court must consider that
which the accused subjectively held in mind at the time when the deceased was shot. If he
had the honest and mistaken belief that his life was in danger from imminent attack, then the
court would hold that he lacked intention to murder.
If that defence is accepted another factor that the court must consider is that fact that the
accused was a frequent visitor to the gun range and he was trained in firearm use.
The court consider the case of S v De Oliveira (668/91) [1993] ZASCA 62; [1993] 2 All SA
415 (A) in which the court had to determine whether the accused, who shot and killed a man
on his driveway, had genuinely but mistakenly believed that he was acting in self-defence,
and therefore lacked the intention to commit murder. The accused did not testify regarding
his state of mind at the time of the shooting. The court relied on other evidence in this regard.
The courts argument was based on the premise that no reasonable man in the position of the
accused would have believed that his life or property were in danger. It was alleged that the
accused had killed the man because the accused harboured racist beliefs and the deceased was
black. The evidence showed that the deceased was not close to the house and that the accused
did not act in putative self-defence. The trial court held that the accused was of low
intelligence, but also held that this would not render him to believe that he should be acting in
self-defence. In the absence of evidence speaking to the state of mind of the accused the court
would impute the state of mind of a reasonable person to the accused. Even though the
accused displayed the intelligence of a low capacity one would still impute the state of mind
of a reasonable person to the accused. The accused failed to provide proof of his state of mind
and hi silence must weigh heavily against him.
In light of the De Oliveira case the state would contend that a reasonable person in the
position of the accused in the Pistorius case would not have believed that they were acting in
self-defence. The defence of putative self defence will not successful if the accused, Oscar,
will not testify to his state of mind. A reasonable person would have thought that there was a
visitor with him instead of thinking that it was an intruder.
If the defence of putative self-defence succeeds, then a second enquiry must be initiated. This
enquiry will deal with whether the accused is guilty of culpable homicide. Culpable homicide
is the negligent killing of another person. The court will question whether a reasonable
person in the position of the accused would have discharged his firearm in such a manner.
The court may have found that a reasonable person would have acted in this way.
Other factors which the court may consider is that the accused visited shooting ranges and his
standard for pulling the trigger was different from that of the average person.
The attack must be unlawful. It is not enough to believe it is unlawful. However, there is no
attack in this case.
The attack must be beginning or immediately threatening.

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One can only rely on self defence to exclude unlawfulness if the attack on life or property has
commenced or is imminent. This is an objective test and one cannot rely on self-defence if
there no attack. It was not imminent because he did not know what was going on behind the
door. The court will look at the speed at which the attack took place. The attacker was not
standing in front of the accused. However, the attack may have been imminent. The general
rule is that a person does not have to wait until the first blow has fallen.
The attack must not have been completed. The defender may not take any measures after the
attack has ceased because this would render his conduct as retaliatory and not defence and
therefore unjustified.
In the case of S v Mogohlwane the actions of using force to retrieve a bag formed part of the
res gestae of the attack. The aggression was seen as a continuing act and therefore the
accused’s response was also continuing. The accused in the Pistorius case could have
resorted to using a panic button.
Conditions relating to the defence
The defence must be necessary to avert the attack.
It must be considered if the accused had other means of escape. The general rule if that one
should not flee if it would expose the person to more harm – Zikalala or if it would increase
your chances of injury - Manuele sile.
Fleeing would also be against the individualist theory as there is no obligation to flee because
one is entitled to defend their property.
The accused had no legs and there was no duty upon him to flee.
The defence must be a reasonable response to the attack.
The threat must be sufficiently serious to warrant the measures taken. The least dangerous
response must be utilised.
It is not always possible to call out warnings or give warning shots. However, the accused in
this case was able to do so because the intruder was hidden in the bathroom, according to the
accused. The interest of the accused must be weighed against the interests of the intruder. His
life verses the life of the attacker. In the case of Van Wyk the court held that when on intruder
defiantly ignores a warning and resistance of the defender such that the attacker can only be
stopped by the most extreme methods then the attacker forfeits his life and signs his own
death certificate, the attacker would then be an outlaw.
The question is whether a reasonable person have acted in the same way as the accused. If so,
then the accused acted lawfully. Observed in the case of S v Motleleni 1976 (1) SA 403 (A).
The accused further contended that he had been the victim of violent crime in the past and he
had received death threats.
In the case of Patel supra the court held that if the accused I faced with multiple alternatives,
then he should not be judged as having time to consider the pros and cons of the situation or
every eventuality. The court should refrain from becoming armchair critics while weighing
the matter in the secluded security of the courtroom. Courts do not consider the principle of

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proportionality, but the courts consider all of the factors when determining if the accused
acted reasonably.
The test takes into account the following factors.
a. Relative strength – a man versus an unknown assailant.
b. Age – twenties.
c. Means – a machine gun, revolver, baseball bat, cricket bat. Silver woods is a secure
complex. The accused’s residence had a three meter high wall, electric fence, guarded
entrance and regular patrols.
d. Nature of the threat – his life was been threatened but he did not know for if it was a
mere case of theft.
e. Value of interest – highest grade in the Constitution – the right to life.
f. Persistence of attack – no attack
g. He did not act reasonably because he could have fled. He said he was feeling
vulnerable therefore he got his gun and moved towards the bathroom. He screamed to
deceased to call the police and for the intruder to get out of his house. Instead of firing
warning shots or instead of waiting for a response he fired four shots immediately into
the bath door.
h. The deceased was shot four times, head, hand, hip and chest. A warning shot towards
the legs would have been enough and would have wounded the alleged attacker once.
i. The state argued that it was premeditated because if a person arms themselves, walks
towards the person and shoots to kill another then this is premeditated. The state
argued that the accused said he walked 7 metres and fired four shots into the
bathroom, with the intention of not to merely scare the would be intruder. The
investigators stated that there was a blood stained cricket bat in the bedroom. The
police had not determined whose blood was on the bat, but the deceased’s skull was
crushed. He used the bat excessive when he discovered who was behind the door.

S v Trainor [2003] 1 All SA 435 (SCA)

The court held that it is possible to generalise the requirements for private defence such that it
is required that there should be a reasonable relationship between the attack and the
defensive act. In order to determine if such a reasonable relationship exist one must
consider relative strength of parties, age, gender, means at their disposal, nature if the
threat, the value if the interest threatened and the persistence of the attack. All the
means available to the accused at the crucial moment must be considered. If the
accused an avert the attack by resorting to conduct which is less harmful or if the
accused inflicts injury that is unnecessary to overcome the threat, then the accused
cannot reply on private defence.
The appellant in the case had been issued with an order which prohibited him from assaulting
his wife. The accused and the wife were involved in an altercation and the accused
was charged for violating section 17(A) of the Domestic Violence Act 116. The

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 accused contended that his wife attacked him and that he was merely trying to ward of
the attack. He hit her once on the arm and kicked her shin after she had kicked him,
this was the argument of the accused. The court held that it had to consider the
appellants version of events and if it was reasonably possibly true then the court
would be bound to accept the appellants version. The court had accepted the evidence
of the complainant. If there was doubt created by the appellants testimony then the
doubt would go to the appellant.
The appellant appealed further after the first appeal. The court held that a summary of all the
evidence is required. Evidence which is reliable needs to weighed alongside evidence
that may be false. Independently verifiable evidence should be weighed to determine
if it supports any other evidence. The quality of the evidence had to be evaluated to
determine whether it was corroborative. Evidence had to be evaluated upon the onus
on any particular issue or against the entire case.
The court further held at the trial was damning towards the appellant. The doctor, who
examined the complainant shortly after the incident, testified that the complainant
would have been struck substantially to sustain bruising. The doctors description of
the injuries destroyed the appellants version of how he defended himself.
There should be a reasonable relationship between the defensive strike and the attack.
It was clear from the evidence that the appellant had not considered walking away. The
accused made no attempt to move the complainant such that he could then drive
away. Instead of pacifying his angry wife he chose to strike her in a manner described
by the doctor. The accused unnecessary harm to the complainant in an attempt to
overcome the harassment she subjected him to.
The appellants evidence showed that during the confrontation he stated that she was trying to
provoke him so that he would assault her. It is clear that he knew that if he assaulted
her he would be in breach of Section 17 a of the Act and he would be arrested. The
appeal to absence of mens rea would fail. The complainants behaviour did not excuse
the assault of the appellant.
The magistrate court issued an order in terms of the Prevention of Family violence Act 133 of
1993 (FVA), which prohibited the appellant from assaulting his wife. The Domestic
Violence Act replaced the FVA. Section 17a on the Act was breached by the accused
when he assaulted the complainant.
The accused appealed to the Cape high court without success and then appeal against the
conviction set by that that court.
The issue is whether the appellant assaulted his wife and therefore was in breach of Section
17.
It is common cause that the order was in force at the material time.
The complainants version was that she and the appellant had arranged to discuss the venue
where they would celebrate Christmas on the day in question. The appellant was
going to work when they engaged in a conversion about the topic. The complainant
was unable to believe of express incredulity that he wanted to discuss the matter while

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 driving out to work. She walked with him to the car and he jumped into the car and he
was sitting in the drivers seat. She then reached in the grab the keys from the vehicle’s
ignition. In response the appellant started assaulting her. He got out of the vehicle and
continued to hit her and kick her. He struck her on the arms, hand, face, legs and
shoulders. She hit him in an attempt to get away. She ran into the house and called the
police.
The appellants version of events were such that shortly before he was leaving to work he
attempted to engage in a conversation with the complainant about the Christmas day
celebrations. He agrees that she stated he was unbelievable. He interpreted this to
mean that she did not want to discuss the matter, therefore he made his way to the
motor vehicle. She followed him. He concedes that the complainant attempted to grab
the keys from the ignition and he then pushed her hand aside, at which point, she
assaulted him. She punched him through the window. He got out of the vehicle and
warded off the blows she rained down on him. He claims that he struck her once on
the arm and kicked her once on the shin after she kicked him.
The magistrate held that on the appellants own version of events the appellant was guilty of
assault and in violation of section 17.
The court held that the appellant had acted in a juvenile and retaliatory manner against the
complainant. The court held that the appellant was much larger and stronger than the
complainant, and he could have merely held the complainant at bay and the walked
away from her. The court held further that the appellant had exceeded the bounds of
self-defence.
It was also held that a court does not consider evidence in compartments, but rather views the
evidence holistically. The accused must be convicted if the evidence establishes guilty
beyond reasonable doubt. The accused must be acquitted if it is reasonably possibly
true that the accused version is true.
The most damning and unchallenged evidence against the appellant is that of the testimony of
Doctor Steven Cornell. The court accepted this evidence but the court makes no
mention of it later on. The evidences contradicts the appellants testimony in which he
described the complainant receiving only a limited number of blows.
The must be a reasonable relationship between the attack and the defensive act. A precise
formulation of the nature of the relationship between attack and defence is not
feasible. This is a question of fact rather than law. This should be determined
dependent on the particular circumstances in which the events took place. The relative
strength of parties, age, etc must be considered.
Exceeding the limits of private defence.
This may be done when the attacked party exceeds the limits of private defence by causing
more harm or injury to the attacker than is justified by the attack. The attacked may then be
guilty of murder or culpable homicide if the person dies but if the person does not die then
the attacked person would be charged with assault.

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 Topic 5 – Necessity

Necessity -Textbook
Definition.
1. a person acting in necessity act lawfully if he acts in the protection of her own or
somebody else’s life, bodily integrity, property or other legally recognised interest.
2. the interest is endangered by a threat of harm which has commenced or is imminent.
3. The threat cannot be averted in any other way.
4. The person may employ this defence provided that they are not legally compelled to
endure the danger and the legal interest protected by the protective act is not out of
proportion to the interest infringed by the act.
5. The threat may emanate in the form of compulsion from a human being or from a
non-human source.
The relationship between necessity and private defence.
These two defences are closely related to each other.
In both cases the accused protects interests which are valuable to him or her from a threat of
harm. Examples of these interests include life, bodily integrity, and property.
Private defence always stems from and is direct to an unlawful attack.
Necessity can stem from an unlawful human act or from chance circumstances, such as an act
of God.
In private defence the act of defence is always against an unlawful attack. In the case of
necessity, the defence act is directed at the interests of another innocent party or a legal
provision.
If a person defends against an animal then this person acts out of necessity, and not private
defence because an animal does not act unlawfully.
The justification of private defence is easily established in because a defence against an
unlawful attack is simply that which the attacker deserves.
In the case of necessity, the accused is in a situation where he or she must choose between of
two evils. The accused must either suffer harm or break the law.
There must be strict compliance with the requirements for necessity.
The courts view the plea of necessity with great circumspection and the courts have held that
the field of application must be applied narrowly.
If X uses necessity to defend in a situation then the other party cannot use private against x’s
act because x is acting lawfully and private defence cannot be employed against a lawful act.
Compulsion and inevitable evil
The situation of necessity may arise from either from compulsion or from an inevitable evil.
An example of compulsion is where X tells Y to commit some unlawful act against Z, and X

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threatens to kill Y is Y does not comply with this instruction. In this case the act arose from
an unlawful attack, but the act committed out of necessity is directed against the interests of
an innocent party.
In the case of an inevitable evil the emergency situation arises from non-human intervention
such as acts of nature, or other chance circumstances, examples include floods and famine
respectively.
Examples.
1. A fire breaks out in X’s house. Y is trapped in the house and needs to break the
window to escape the harm. If X is charged with malicious damage to property in
respect of the broken window, then the accused can rely on the defence of necessity.
Defensive act is against an innocent party.
2. X’s baby swallows pills and the baby needs to be rushed to hospital in order her the
baby’s life to be saved. The mother of the baby breaks the speed limit while rushing
to the hospital and is charged with speeding. The accused may rely on the defence of
necessity. This is an infringement of a legal provision.
Necessity can be employed against compulsion or an inevitable evil.
Absolute and relative compulsion.
Absolute force {Vis Absoluta} – the accused does not commit a voluntary act. An example
would be if Y, who is much stronger than X, grabs X’s hand who is holding a knife and uses
physical force to stab Z. X is physically unable to prevent this from occurring. The absence of
liability in respect of X then stems not from necessity but from voluntary conduct.
In the case of relative compulsion there is a need for a voluntary act on the part of the
accused. Example: Y threatens to kill X if X does not kill Z. In this case X is free to choose if
they want to kill Z or not.
Necessity as a ground of justification.
Necessity is a ground of justification and it excludes unlawfulness. X is in an emergency
situation such that he has to weigh the conflicting interests against each other and then he
infringes on the interest which is of less importance according to the legal convictions of the
community.
Necessity could exclude unlawfulness and culpability. This defence is called putative
necessity. The requirements for necessity would not have been fulfilled and the conduct of
the accused is still unlawful. However, the accused may escape liability because they lacked
intention regarding the unlawfulness of the conduct.
Requirements for a successful plea of necessity.
1. Legal interest of the accused must be threatened. Examples: Section 11 - life, Section
12 - bodily integrity, dignity, freedom of movement, chastity. Having a dignified life
informs the right to life.
2. One may also act in a situation of necessity to protect the recognised legal interests of
another. Example X protects Y from the attack of an animal.

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 3. The emergency must have already begun or be imminent, it must not have terminated
nor be expected in the future.
4. The reliance on necessity when the accused is responsible for the emergency situation
is a controversial consideration. The accused should not be precluded from relying on
the defence of necessity if he or she is responsible for the emergency situation
because of antecedent liability or prior conduct..
If the accused’s baby swallows pills, due to X’s carelessness, then if X breaks the
speed limit she may rely on the defence of necessity.
The threat cannot be caused by the accused’s own fault. The person may not rely on
the defence of necessity if they have created a situation in which an emergency in the
form of compulsion will threaten them.

In the case of S v Bradbury 1967 1 SA 387 (A)

The accused was a member of a gang and he was instructed by fellow gang members
to commit a murder. His life and his family’s ‘lives were threatened by the gang. He
initially agreed but was unwilling to do it. Another gang member was instructed to
perform the murder and the accused was instructed to help him. The accused drove
the assassin to the scene of the murder and then drove the assassin away once the
murder was completed.
The court had to determine if the accused could rely on the defence of necessity.

The court considered a number of factors when determining is the accused was
blameworthy.
1. The accused was drawn into gang activities and as unwilling to participate
initially.
2. The accused was unwilling to participate in the murder.
3. Was the fears of the accused reasonable?
4. He did not take steps to remove the compulsion.
The court held that the accused was to be convicted of murder and sentenced to death.
On appeal, the court held that
If a person joins a gang with a code of vengeance, then that person may not rely on
necessity as a grounds of defence by claiming that he or she was coerced into commit
the crime. The court held further that he may rely on fear as an extenuating factor, i.e.
lessens the offence. The court held that he had taken no steps to withdraw himself
from the situation, and this worsened his situation in respect of the conviction.
The reason is because it is not a defence where the act is a result of the accused’s own
unlawfulness.

Case: S v Mandela
The accused was a former police officer and he was involved with the ANC. The
ANC were dissatisfied with the establishment of the National Consultive Forum, a
forerunner of the United Democratic Movement. In an attempt to discredit the NCF,

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 the ANC planned numerous attacks on the group. One instance involved arson, in
which Mandela borrowed a petrol container and set NCF members houses alight.
Mandela was instructed by a high ranking ANC leader to kill a woman named
Nomhle. Nomhle wanted to buy a house, and Mandela told her that he knew the
location of a house for sale. He then took Nomhle and his friend to the house.
When they arrived, the friend tied his shoelace, as an indication to carry out the
assassination. Mandela shot Nomhle twice in the head. Mandela called crime stop
stating that Nomhle had been kidnapped. She was found dead in Cape Town.
The next murder involved Mandela’s girlfriends brother-in-law, names Milton.
Mandela and Milton went out one evening but only Mandela returned without Milton.
He told Milton’s wife that he was talking to Mr Jenzile and that he thinks Milton had
been kidnapped. Milton took an illegal 9mm firearm and was found murdered. The
motive for the killing were all NCF. The accused carried out many illegal activities
for the ANC.
The charged against Mandela were two counts of murder. In respect of the first
murder, he claimed that if he did not commit the murder then he and his family would
have been killed by the members of the ANC. In respect of the second murder, he
claimed that he did not commit the killing, but he drove the getaway vehicle from the
scene of the murder of Milton.
The accused was charged with murder, arson and the unlawful possession of a
firearm.
The accused was convicted of murder and the defence was unsuccessful.
The court considered referred to the approach set out in the cases of S v Bradbury
1967 (1) SA 387 (A) and S v Lungile 1999 (2) SACR 597 (SCA) which confirmed that a
person who acts voluntarily and deliberately to join a gang, having knowledge of the
activities of the gang and the consequences of been disobedient to a gang, cannot
rely on the defence of necessity.

The court rejected the defence put forward by the accused, that of compulsion in
the form of the gang instructing the accused to participate in murder. However, in
the case of Mandela the gang membership was not decisive issue. The reason for the
defence not succeeding is due to the requirements of the defence. The court
considered the case of Goliath, and held further that compulsion or necessity is a
complete defence, regardless if the person who is killed is innocent because one
cannot value another’s life more than their own. The court held that the it should
not be required that one display heroism.
The court held that the defence could not be successful because there was no
immediate threat endangering the life of the accused. The reason his defence was
unsuccessful was because he had ample opportunity to take alternative action and
avert the harm.

The court found that given the environment of violence and disregard for human life
provides a good reason for the curbing of the defence. This must be weighed against
the right to life in section 11 of the BOR. If the court was to accept the plea of
necessity in this case then this would precipitate the acceptance of low standards

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 from society. Society should be based on constitutional principles such as the right to
life and ubuntu. The acceptance of necessity here would undermine the right to life in
the Constitution. The court held that the accused had other options such as informing
the deceased, inform the police and thereby impeding the execution of the crime. The
accused did not give a reason as to why he did not take other steps, it was expected
that he could have relied on the police to protect him because he would have been
acting as an informer. The accused could have enrolled in a witness protection
program or chosen to flee. The court held that there was no immediacy of a life
threatening situation. The court held that a person faced with the most difficult
choices may not have the requisite fault but he may be negligent if he fails the
reasonable person test.
The court held that a person who is faced with the choice of saving his own life at the
expense of another may be regarded as not having the necessary mens rea. It can only
be said that the defence of necessity will be successful, such that the accused lacked
the requisite culpability, if the death of the deceased cannot be averted, by others
means, except that of acts of heroism, which go beyond the scope of that which is
demanded by a reasonable person.
The court held that the accused could have contacted the police, therefore he could
not rely on the defence of necessity because he had not taken alternative steps to avert
the danger.
The accused needed not to show any heroism. It is noteworthy to mention that other
democracies, Britain, do not accept compulsion as a complete defence against the
charge or murder.
The defence remains valid, but the act remains unlawful and culpability on the part of
the accused is excluded.
Although a person will have knowledge regarding the unlawfulness of their conduct
and have the necessary intention to commit the crime of murder, they cannot be held
liable because the law could not reasonably expect a reasonable person to act
differently.
If a person is legally compelled to endure the danger then they cannot rely on
necessity. Police officers may not infringe the rights of others to avert the danger
inherent in their profession. A person may not rely on necessity against that which
appears to be unlawful is in fact lawful conduct.
If the accused is lawfully arrested then he or she may not damage the police van in
order to escape it and rely on necessity.
The accused must be aware that the emergency exist, and that she will be acting out of
necessity. There is not such thing as accidental necessity. If the accused throws a
brick into a house to break in the house, but saves the family in it from certain death,
as the broken window allows poisonous gas to escape, then the accused cannot rely on
necessity.
If the emergency is a result of coercion then the accused must be aware of the threats
and must believe that those threats will be executed.
Example: if X knows that Y is only joking by uttering threats against X kills Z, then X
cannot rely on the defence of necessity.

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 X’s act must be necessary to avert the danger. If it is possible for X to flee when
threatened by Y to kill Z then X should flee.

Case: S v Goliath 1972 (3) SA 1 (A)

S v Goliath 1972 (3) SA 1 (A)

The accused in this case was charged with murder. The premise of the charge was the
fact that another person, shall be referred to as the killer, and the accused encountered
the deceased. The killer confronted the deceased and demanded cigarettes and money.
The deceased did not have anything to give them. The killer then stabbed the
deceased in the chest and told the accused to restrain the deceased. The accused
refused to be part of the killers plan, but the killer threatened to kill the accused if he
did not comply with the instructions of the killer. The accused held the hands of the
deceased behind his back and the killer stabbed the deceased 12 times which was an
end to the life of the deceased.
The accused defence was that he had acted under compulsion and he was in a
situation of necessity as a result of the threats from the killer.
The trial court held that the killer was guilty of murder and he was sentenced to death,
the accused was acquitted for the crime on the basis of necessity or compulsion.
The case was appealed to the Appellate division and the appeal court had to determine
if the trial court had made a correct conclusion in respect of defence employed by the
accused, and if the defence of compulsion was applicable to this case. The court had
to determine whether the compulsion was to the extent that the accused’s act was
justified. The court had to determine if the defence of necessity can be implemented
against the charge of murder such that the accused will be entitled to an acquittal.
The court held that the test which must be applied is an objective test and it places a
fictional person in the circumstances of the accused in order to determine if the
accused acted reasonably. The court held that the law does not want to enforce the
highest ethical requirements and that it is generally accepted that a normal person will
not rank the life of another as more valuable to their own. The interest must be
weighed against each other, and it may be said that the law and ethics do not always
coincide. The court further held that necessity or compulsion could be a complete
defence against the charge of murder, but this is dependant on the circumstances of
the case. In respect of whether the accused would be able to rely on the defence of
compulsion in the circumstances, the court held that the accused would be able to
successfully rely on the defence.
The appeal court had to consider two critical aspects of the case, can the accused rely
on the defence of compulsion if he or she committed murder, and are the
circumstances of the case sufficiently close to render it a case analogous to that of a
case involving compulsion.

The court held different views in this regard. Rumpff JA held that compulsion may be
a defence against a murder charge but he was silent on whether the defence of
compulsion or necessity excludes the unlawfulness element of criminal liability or the
culpability element of criminal liability.

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 Wessels JA held that necessity was a defence which can only exclude fault. The act
remains unlawful. However, the accused is not accountable because the accused
would have been reluctantly acting due to forces and circumstances externally found.
It was held that the general rule is that one is not allowed to take the life of an
innocent person to protect their own life. The court also held that high demands,
which violate the bounds of reasonableness, may not be placed on the accused, one
cannot expect a person to value another’s life more than they value their own life. The
court further held that the test for necessity is objective and the actions of a reasonable
person in the same set of circumstance must be considered. The court held that there
are factors which must be considered when determining if a person acted reasonably.
The age of the accused and the killer were vastly different. The killer was 30 and the
accused was 18. The court questioned whether the accused could have fled in the
situation. The court took account of the fact that the accused was merely an
accomplice to the principle offender, and bound the hands of the deceased behind his
back. The court also considered that the accused did not profit from the crime.

S v Bailey 1982 (3) SA 772 (A)

The accused in the case if Bailey were charged with murder.

Two prisoners were charged with the murder of another prisoner. The accused argued
that he was placed in a position such that he was under compulsion to commit the
murder from the other prisoner.
The trial court held that the first accused was guilty of murder and the second accused
was guilty of culpable homicide.
It was held that a reasonable person would not have yielded to compulsion. However,
the court found that the second accused may have believed that his life was in danger
if he did not comply with the demands of the first accused, that is to participate in the
murder.
The case was appealed to the Appellate division. The appeal court had to determine if
a person is guilty of a crime murder, which requires intention, and it is proved that,
firstly, he acted unlawfully and intentionally to bring an unlawful consequence or
murder into existence, secondly, acted under compulsion due to his life been
threatened, thirdly the compulsion was to the extent that a reasonable person would
have not yielded to it and finally there were no other grounds which excluded
culpability.
The Appellate division held that necessity could operate as a justification ground
which excludes unlawfulness or as a ground of justification such that it would exclude
culpability. The court held that the defence which excluded culpability was a
contention. It was held that the respondent helped to kill the deceased with intention
to kill and the knowledge of unlawfulness, and he should be found guilty of murder. It
was held that the accused’s conviction was to be altered to murder with extenuating
circumstances.

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 The harm occasioned by the defensive act must not be out of proportion to the interest
threatened. X must not cause more harm than is necessary to avert the danger.
The protected interest must be of greater value than the infringed interest. This
principle is often occurring and difficult to apply. The protected and impaired
interests are often of a different nature. Example damaging another’s property in
protection of the accused bodily integrity.
Each case must be judged on it’s own merits.

Necessity is a ground of justification in which the accused finds himself in an emergency

situation and has to weigh two conflicting interests against each other. The accused
then infringes the interest which is of lesser importance according to the legal
convictions of the society.
An example to illustrate this concept would be if the accused is trapped in a burning building,
he can either break the door and escape of face injury or death.
In order to determine whether necessity operates as ground for justification the court must
weigh the protected interest or life against the threatened interested or property.
Legal convictions of society consider life as being more important and therefore a
justification ground.
Putative Necessity
If the accused subjectively believes that he is in an emergency situation but when view
objectively he is not then the accused may not rely on necessity.
If the accused commits an act that do not fulfil the requirements for the defence of necessity
then such conduct is unlawful. However, the accused mistake regarding the existence
of a justificatory circumstances may exclude culpability.
The courts employ the use of the reasonable person test and consider whether a reasonable
person in the position of the accused would have acted in the same manner as the
accused. The court will only focus on whether the conduct of the accused was
reasonable, and it will not focus on negligence as a point of contention.

Killing another person out of necessity.

Killing another person in necessity may constitute a complete defence. A controversial
consideration is whether the accused may kill another in order to escape the threat of
harm. This can only occur if the accused’s mortality has been threatened. The mortal
danger may stem from compulsion or an inevitable evil.
In the case of Goliath it was held that the accused may kill another in a situation of necessity.
In the case X was ordered by Z to hold Y so that Z could stab Y and kill Y. Z
threatened to kill X if he did not comply. The only was that X could avert this danger
was to comply with Y and help him kill Z.

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The trial court and the appeal court held that the accused could rely on the defence of
necessity if they are acting against an act of compulsion. The court held cases of
necessity must be scrutinized carefully. The court held that not every person is
endowed with the quality of heroism and the accused should not be expected to
sacrifice his own life for the life of another. The accused cannot be demand anymore
than those demands placed on the average person.
It was questioned whether the act committed in necessity excluded unlawfulness or
culpability. The trial court held that the compulsion excluded culpability.
It is correct to hold that it excludes culpability. If the necessity excludes unlawfulness then Y
in the case of Goliath would not have been able to act against the conduct of X
because X would have been acting lawfully. It would be an untenable situation if Y
had to submit to the mortal attack on himself. However, the defence of necessity
would equally be available to Y in this situation.
X conduct may not be justified when one considers the requirement that the value of the
protected interest must be more valuable than the threatened interest. One life is not
more valuable than another life.
In the case of Mandela the court held that on the charged of murder, a necessity in the form
of coercion, may exclude culpability. It was held that it incorrect to assume that one
life is more valuable that another person’s life because this will violate section 9(1) of
the Constitution, which provides that everyone is equal before the law and has equal
right and benefit to the law.
Sections 10 and 11, which provide for the right to human dignity and life respectively,
reinforce the notion that one person’s life is not valuable than another person’s life. It
has no been decided whether killing another in an act of necessity is constitutionally
permissible.
In the case of Maimela the SCA upheld the defence of necessity, when the accused shot the
deceased dead but the conduct of the accused was objectively reasonable.
In the case of Makwanyane the court has held that to deny the innocent person the right to
defend themselves in self-defence would be to deny that person the right to life.
Case of R v Dudley Stephens 1884
5 May 1884, a yacht departed for Essex, England, to Sydney, Australia.
Tom Dudley, the captain, Edwin Stephens, the first mate, Edmund Brooks, a crewman and
Richard Parker, the ships cabin boy
There were four crewmen on board. On the 5th of July the ship deviated from its normal route
due to bad weather. The ship was 1600 miles of the Cape of Good hope. The ship
was hit by massive waves and the crew was forced to abandon the ship and board a
life boat.
The crew survived for the first ten days, but their boat was 1000 miles from land.

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After 7 days without food and 5 days without water, Dudley proposed that the draw lots so
that one of them could be sacrificed to feed the others.
Brookes rejected the proposal and Parker was not consulted. Stephens was persuaded that the
only hope was to kill and eat the cabin boy who was drifting in and out of
consciousness and the weakest.
Dudley stabbed and killed the boy the next morning and the remaining men fed on the boy
for the next four days. The men were rescued by a German ship and after recounting
their story to the authorities they were arrested and charged with murder.
The jury held that had the men not killed the boy they would have not survived. It was also
held that the cabin boy would have died in any event and that there was no reasonable
prospect of rescue.

On appeal the court held that:

1. Self-preservation is not a defence to murder.
2. Everyone has the right to life.
3. The court question the standard upon which life should be measured against and the
court held that such a principle result in atrocious crimes been committed. Was it
more necessary to kill him than to kill any of the grown men, the answer is no.
4. To preserve life is a duty but to sacrifice ones life is the highest duty. An example
would ne in times of war.
5. The court held that there is no justification for the murder.
Necessity as a ground for mitigation of punishment
If the defence of necessity is rejected because a requirement is unfulfilled then the extent of
the threat to X may be considered as a mitigating factor when punishment is imposed.

Topic 6 – Consent
Consent given by the victim would render otherwise unlawful conduct lawful, this was held
in many cases. Consent as a ground of justification operates in a limited number of situations.
If no consent given, in respect of crimes in which consent shall exclude unlawfulness,
example theft, then the conduct is unlawful.

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If the accused thinks that consent has been given, but it was not, then she may escape liability
due to a lack of culpability.
Consent requires a meeting of the minds between two people. This may be in the form of a
bilateral or a multilateral act. Consent may be given expressly or tacitly. Mere submission or
silence does not amount to consent.
There is a distinction between two types of consent, consent to suffer bodily harm and
acceptance of the risk to bodily harm.
A person may consent to physical injury in situations where the injury is not serious and does
not produce actual bodily harm. The harm to which the person consents must be transient or
trifling.
Case R v Donovan 1934 All ER 207
Bodily harm is defined as any injury calculated to interfere with the health or comfort of the
complainant.
In order for consent to be valid there are certain requirements which must be established.
1. The law must recognise the existence of consent to that type of crime. The consent
must be operative in respect of the conduct in question.
Consent does not operate as a ground of justification for all crimes, and in those
crimes where it does operative, it only operates under certain circumstances. Consent
only operates against crimes against an individual and not against the state.
These crimes are categorized into crimes where the absence of consent forms part of
the definitional elements, example rape; crimes in which consent can never operate as
a ground of justification, murder; crimes where consent is a ground of justification,
theft, injury; and crimes where consent of sometimes a justification, assault.
Consent does not operate as a ground of justification if consent is part of the
definitional elements of the crime.
Consent by the injured party can never operate for the crime of murder. Mercy
killings and active voluntary euthanasia are unlawful and result in a conviction, see
Minister of Justice v Estate Stransham-ford 2017 3 SA 152 (SCA).
Consent may operate as a justification ground for the crime of theft and malicious
damage to property.
The state has a duty to protect individual rights and the state. Individual consent to
impairment of interests is not always recognised by the law. Sometimes consent to
physical harm could be construed as unlawful, and therefore amounting to assault.
The dividing line between that which can be consented to and that which cannot be
consented to is determined by public policy, as observed in Sikunyana 1961 3 SA 549
€ 551.

Consent operates as a ground for justification in assault in sporting events or if the

persons bodily integrity is violated during the course of a medical procedure. Other
examples include a kiss, handshake.

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 A participant in a sport may validly consent to those injuries which are normally
expected in that type of sport.
Voluntary participation in a particular type of sport implies that thee participant
consents to the injuries sustained during the course of the game. Such incidents are
normally expected in a game. Serious injuries which are completely forbidden by the
rules of the game and which are not normally expected cannot be justified by consent.

A medical doctor cannot be charged with assault if he performs a medical operation

on a person, with that person’s consent, see Sukunyana 1961 3 SA 549 (E). If the
patient was unconscious or mentally illness then the doctors act is justified by
necessity or presumed consent.
Sexual assault may committed with or without the use of force or the infliction of
injuries. It was held that consent may not operate in cases in which injuries were
inflicted, See Matsemela 1988 2 SA 254 (T). One must consider whether the act was
against the good morals of society or not.

2. The consent must be given voluntarily, without coercion. This is a question of fact.
Consent obtained as a result of violence, fear or intimidation is not voluntary consent.
Mere submission is not consent. If a woman decides not to resist the futile attempts to
resist an attacker trying to rape her and simply acquiesces in his conduct, then her
conduct can never be viewed as consensual.
Compliance induced by duress, threats, force or intimidation is not genuine consent.
Case: R v McCoy 1953 (2) SA 4 (SR)
The accused, McCoy, was the manager of an airline corporation and he inflicted a
caning on an air hostess for failing to comply with safety regulations. He was
convicted of assault. The accused appealed the conviction on the grounds that the
complainant had consented to the caning. However, she had agreed to the caning as
only as an alternative to being suspended or grounded, and this would have had a
negative impact on her financial wellbeing.
The appeal court held that consent was invalid because she submitted under duress.
The conviction was upheld.
An individual who induces another to kill or mutilate himself is in violation of public
policy. If a person encouraged him to inflict sado-masochistic beatings on a
consenting victim then this will diminish the actor’s inhibitions against sadism. The
victim’s interest in he beating must be weighed against the social dangers of
introducing others to this form of conduct which the law seeks to prohibit.
The recognition of consent is underpinned by the social objectives of the crime in
question. It must be considered if society deems that type of conduct as acceptable or
unacceptable.
S v Volschenk 1968 (2) PH H 283 (D)
Volschenk, the accused policeman, raided the room where the complainant was
illegally sleeping. He then induced her to have sex with him and he threatened to lay
criminal charged against her if she refused to comply with his wishes. The court held
that consent obtained under duress does not amount to true consent and the accused
was convicted of rape.

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 3. The person giving the consent must be capable of giving consent. The person must
have the mental capabilities to know the nature of the act to which is consenting and
she must be able to appreciate the consequences arising from such consent. Therefore,
mentally ill woman, girls under a certain age, drunk or unconscious females cannot
give consent to sexual penetration. Other factors are important in determining whether
the minor has sufficient mental capabilities, intelligence of child, life experience,
standard of education.
The person concerned must appreciate the nature of the act to which they are
consenting.
Persons that are too young to understand and appreciate the nature of the act, mentally
ill or defective to the extent that they will not understand the nature of the acts, and
people are are intoxicated to the same extent do not have the capacity to give consent.
People who are asleep or unconscious do not have the capacity to consent.
In terms of the common law children under the age of 7 are incapable of consenting to
any act. If a minor is 7 years and older then the validity of their consent will depend
on whether he or she is capable of understanding and appreciating the nature of the
act.
Factors such as intelligence, education and background must be considered. A person
need not be 18 years or older to give valid consent.
There exists a rebuttable presumption that girls under the age of 12 can never validly
consent to sex, and that sex with a girl under the age of 12 will always amount to rape,
regardless of whether she understood the nature and consequences of the sexual act.
This was held in the case of R v Z 1960 (1) SA 739 (A).
This rule has been replaced by the Sexual offences and Related Matters Amendment
Act 2007 which replaced the common law definition of rape. In section 1(3) of the
Act, the legislature held that a child under 12 years old is incapable of appreciating
the nature of sexual penetration or violation, therefore is incapable of providing valid
consent.
In the part there was a very narrow definition from what constituted rape. In the past
rape could only be committed by a man against a woman by the man inserting his
penis into the woman’s vagina without her consent. Male on male anal penetration,
vaginal penetration using an orifice male on female anal penetration without consent
was not viewed as rape. In the case of S v Masiya 2007 (2) SACR 435 (CC) the court
read-in words to make that definition more constitutionally friendly. In this case the
girl was anally raped and the court held that this was unacceptable, and the court was
going to read-in words to ensure that the person will be convicted of rape. The Act
reads that any person who unlawfully and intentionally commits an act of sexual
penetration is guilty of the crime of rape.
Section 1(3)(a) of the Sexual offences and Related Matters amendment Act sets out
the circumstances under which consent will be negated. These circumstances are if
there is force or intimidation or a threat of harm. The person may have consented to
sexual intercourse but they have not consented to contracting a sexually transmitted
disease.
Section 14 and 15 of the old Sexual offence Act made it a statutory offence for an
male to attempt or to have sex with a girl below the age of 16 and a female to have
sex with a boy under the age of 16 years old.

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 Section 15 and 16 of the 2007 Sexual Offences Act makes it an offence for any person
of either sex to perform any act of sexual penetration or violation with any child under
the age of 16 years old.

In respect of medical operations, the Child Care Act 1983 held that any person over
the age of 14 years may validly consent to medical treatment except for surgery, in
which case the person must be over the age of 18 years.
The Choice of Termination of Pregnancy Act 1996 provides that any woman
regardless of age can choose to terminate her pregnancy.
The Children’s Act of 2005 lowers the age of consent for a number of issues. As of 1
July 2009, children over the age of 12 may consent to HIV testing and obtain
condoms and other contraceptives without parental consent.

In respect of sports and entertainment, if no legislation exists, and the rules of the
sport prevent people from injury, and the game is not contrary to public policy, sports
and games are lawful. Participation in such games amounts to a voluntary assumption
of the risk of bodily injuries, only if the game is played by the rules.
There need not be a formal set of rules for a game to be lawful. The participants in a
friendly informal game must expressly or tacitly agree that anything more than a
serious injury is to be avoided and that a serious injury is not likely to occur.
Contestants taking part in duelling, prize fighting and Russian roulette are acting
unlawfully because the game may result in death or serious injury.
Consent to injuries in sports may be valid, although contrary to the rules of the game,
if these injuries are expected to occur during the course of the game. In a contact sport
injury may be consented to if it is cause by a tackle, but serious injury resulting from
an assault be normal and one does not consent to such injury.

Case: Boshoff v Boshoff 1987 (2) SA 694 (O).

The court held that the injury sustained in a game of squash, such that, the defendants
racket slipped out of the accused hand and struck the defendant can be expected in
such a game.

In respect of religious, customary and superstitious practise, if the practise results in

or is likely to result in only in a minor injury, then consent will negate the
unlawfulness element of the aggression. If the injury produce actual bodily harm, then
consent will not be a defence.

Case: R v Njikelana 1925 EDL 204

The accused was a traditional healer and he rubbed an aphrodisiac on the genital of
the victim with her consent in order to cure her frigidity. The powder caused irritation
and pain, but this discomfort was short-lived. The court held that the defence was
valid and the accused was acquitted of the charge.

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 In the case of S v Sikunyana 1961 (3) SA 549 (E), the accused and his co-accused
were traditional herbalists who were in consultation with a young woman who had
asked them to remove an evil spirit from her. The sprinkled medicine over live coals
and held her over the coals. She was burned on her face an upper body. The were
convicted of assault with the intent to do grievous bodily harm.
The appeal court held that a dangerous act perpetrated by the four accused could not
be considered to be lawful by the victims consent. The court distinguished the facts
from those of Njikelana, in which there was no evidence that the powder was harmful.
The court held that the conduct of the accused was inherently unlawful. Seriousness
of the bodily injury is not definitely indicative or decisive as to whether the consent is
a justification.
A medical operation may result in serious injury but it is lawful if properly consented
to because of the therapeutic nature of the operation.
Public policy is a determinant in the ultimate legality or illegality of the conduct.
In some cases a person cannot give consent and another person may give consent on
their behalf, with the necessary authority to do so. This is known as consent by proxy.
Parents may consent to their underage child undergoing medical treatment or surgery
and such consent will be valid.
In the case of mentally ill persons a curator ad personam may be appointed by the
high court on an application by the interested party. The curator will then have the
requisite authority to grant consent for the person to undergo medical treatment or
operations. Certain acts are too personal in nature and another person may never give
consent on behalf of another in this regard, such as consent to sexual intercourse. A
parent cannot consent to their underage child having sexual intercourse.

4. The person consenting must be aware of the true and material facts regarding the act
to which she is consenting. The material facts are dependant on the definitional
elements of the crime. In the case of rape, the woman must know that it is sexual
penetration to which she is consenting.
If the woman believes that an operation is been done to her then there is no valid
consent, see Flattery 1877 2 QBD 410. If the woman is aware that she is consenting
to sexual penetration but she is unaware of the consequences then there is a valid
consent
There can be no valid consent if the woman is mistaken about the identity of the man
she is giving consent to. If a woman believes a man is her husband in the darkness of
her room, but it is in fact a stranger, then there is no valid consent.
The person giving consent must be aware of the material facts concerning the act to
which he or she is consenting.

Consent may be impaired by fraud. If consent is obtained by fraud or deception then it

is not genuine consent. Fraud or deception takes the form of actively misleading the
other person regarding the nature, circumstances and consequences of the act to which
they are consenting. It may take the form of actively withholding information that is
material to the other persons decision-making process.

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 Not all forms of fraud and deception amount to a vitiation of consent. In respect of
sexual act, the consent will not be deemed valid if it was obtained fraudulently, such
that it leads to an error in respect of the nature of the act or the identity of the accused.

An example in respect of the nature of the act occurred in the case of R v Williams
1923 1 QB 340. In this case a music teacher persuaded a female pupil to agree to have
sexual intercourse with him on the misrepresentation that it was a surgical operation
which would improve her singing. The accused was found guilty of rape. The victim
had consented to the surgical operation, but she did not consent to sexual intercourse.
This was held to be an error in negotio or an error in respect of the nature of the act.
This occurs when the accused induces the consent for a certain act and commits an act
that is of a different nature to the one which the victim consented, there is no valid
consent in such a situation. If the accused fraud does not result in a mistake regarding
the nature of the act, but only a mistake regarding the consequences of the act, then
consent remains valid. Therefore, a woman who knows she is consenting to an act but
is mistaken about its consequences provides a valid consent.
R v Williams 1931 (1) PH H38 (E)
The woman consented to sexual intercourse on the pretext that it would remedy the
displacement in her womb.
R v K 1966 (1) SA 366 (SRA)
The woman has sexual intercourse on the pretext that it would cure her of her
bareness.

Error as to the person cases:

In the case of R v C 1952, a woman was asleep in her bedroom, when an unknown
man entered the room window. He then proceeded to have sexual intercourse with
her. The court held that an error in respect of the person the woman was having sexual
relations with does negate or vitiate consent.
Other types of deceptions such as age, pedigree, wealth, marital status and willingness
to marry or pay the complainant for service do not vitiate consent. Consent remains
valid if there is consent regarding the nature of the act such that the person consenting
to the sexual intercourse does not know the risks involved or is misled about the risks
involved.

In the case of R v Benett 1866 4 F & F 1105 the court held that failure to disclose a
vernal disease could negate consent to sexual intercourse.

In the case of Hegarty v Shine (1978) 14 Cox CC 145, the court dealt with an action
for damages arising from assault and breach of contract. The plaintiff had lived with
the defendant for one year without been married. The couple had a baby together, but
the man had transmitted syphilis to her and she transmitted it to the baby. He had
concealed the illness from her. The court dismissed her claim, and held that
extramarital cohabitation was immoral and illegal and there was no duty of disclosure
in such an immoral relationship.

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 In the case of R v Clarenece (1888) 22 QBD, the court held that a husband’s failure to
disclose that he had gonorrhea did not negate or vitiate the wife’s consent to sexual
intercourse. This has been followed in South Africa.

Sexual offences cases

There were recent developments in the Canadian Supreme Court decision of R v
Cuerrier (1998) 2 SCR 371. The accused was charged with aggravated assault after
having unprotected sexual intercourse with two complainants, and having not
informed them about his HIV status. He admitted that he knew the two complainants
would not have had sex with him if he had disclosed such information.
The SC held that he should have been convicted and ordered a re-trial. Various judges
heard the appeal and gave different reasons for coming to the decision. The court held
that if a woman consents to sexual intercourse she does not consent to contracting a
serious disease.
In the Cuerrier supra case the background was such that the accused tested positive
for HIV and subsequently had sexual relations with two women, without disclosing
his HIV status to them. Under Canadian law a charge of assault must be accompanied
with proof such that the defendants conducts endangered the life of the complainant
and that force must have been applied intentionally. At the trial court the accused was
acquitted because both woman consented to having unprotected sexual intercourse
with the accused. On appeal to the British Columbia High court of Appeal. However,
the Supreme court of appeal held that the accused failed to disclose his HIV status and
this was fraud. The women’s consent was not obtained by valid means because of the
fraudulent manner of which they were obtained. The court held that a HIV positive
person who practises safe sexual practises is under no legal obligation to disclose his
or her status. The majority of the court held that to keep such information was fraud
but the court differed on how to implement the ruling in law.
The court held that the prosecution had to prove 3 requirements. First, the accused
committed an act that a reasonable person would see as dishonest, second, there was
harm or risk of harm to the complainant as a result of the dishonesty, and finally, the
complainant would not have consented but for the dishonesty of the accused.
A consequence of criminalizing the failure to disclose a person’s HIV status with
result in people not being inclined to taking HIV tests. Doctors records and over the
counter tests are in existence to provide the necessary avenues to be tested. Safe sex is
a defence but there is no burden of proof on the part of the accused to show that he or
she was educated in respect of safe sex measures. It must be determined which type of
sexual conduct is riskier. It is unknown whether vaginal sex, anal sex or oral sex are
the riskiest in terms on HIV transmission. The use of a condom will reduce the risk of
harm to the extent that it would be deemed to be insignificant. It must be determined
if HIV transmission will be considered as serious harm due to the improvements in
health care and life expectancy of the HIV positive person. Significant risk should be
construed as substantial risk. Criminal sanctions should be limited to those who
deliberately and recklessly infect others. There are 60 strains of HIV, therefore
proving which person was the source of the virus would be difficult. There is a
possibility that the carrier was in the first 30 days of infection, therefore proving that
the person knew or did not know would be another critical factor. If the strain of HIV

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 that infected the complainant is the same of the carrier then it would be difficult to
prove beyond reasonable doubt that the carrier was the cause of the complainant
contracted the virus. The crime that person will be convicted of in South African law
must be determined.

S v Nyalangu 2005 JOL 13254

In the above case the accused was charged with rape and attempted murder in the
court a quo. He was found guilty on both counts. The complainant alleged that on the
day in question she was walking alongside a railway track and the accused
approached her and forced her into the bushes. She protested and she told him that she
was menstruating. The accused continued with his attack and he raped her. DNA
evidence proved that the accused was the perpetrator of the crime. The accused stated
that he was aware of his positive HIV status before he raped her therefore his conduct
fell within the ambit of the Criminal Law Amendment Act which deals with specific
offences for rape committed by a person with knowledge of the positivity of their HIV
status. The rape conviction was confirmed and the question of law before the court
was whether the accused could be convicted for attempted murder.
The question before the court was whether attempt murder was aligned with South
African law. The perpetrator is trying to kill a person by transmitting a deadly virus,
the victim will not die in the immediate future, for example today or tomorrow, but
will die some time in the distant or near future.
The accused did not act with dolus directus, but instead acted with dolus eventualis
because he knew that his conduct will bring about the harm but he nevertheless
carried out these actions, that is that rape of a woman with the knowledge of the his
positive HIV status. The criterion is that the accused must have knew before the rape
had taken place that he was HIV positive and he foresaw the possibility that raping
someone could lead to that person contracting the virus. It is of no consequence if the
victim contracted the virus or not, the important factor is that the accused intended to
transmit the virus to another. The risk of infection is sufficient to warrant the charge
of attempted murder. Schedule 2 part 1 of the Criminal Procedure Act is sufficient to
deal with this conduct because it relates to the commission of a rape by the perpetrator
such that the perpetrator knows he is HIV positive. The accused did not wear
protection before he raped the woman therefore, he intentionally infected her with the
virus.

Case: S v Phiri 2014 (1) SACR 211 (GNP)

The appellant was a 32 year old first offender and convicted of attempted murder and
sentenced to 6 years imprisonment in the trial court. He appealed the sentenced and
the conviction.
The conviction was based on the fact that he had unprotected sex with a female while
he knew that she was HIV positive and that he was HIV positive. He worked as an
HIV counsellor for the department of health and the victim visited the him for
counselling. He contended that he should be convicted of assault with the intention to

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 do grievous bodily harm instead of attempted murder. His argument was that the
sentence was inappropriate because he was a first offender and HIV positive.
The court held in respect of the conviction that there existed no merit in the appellants
contentions. The fact that he knew he was HIV positive and that she was HIV
negative was sufficient to warrant the conviction. The accused acted with dolus
eventualis. The court had to make judicial acknowledgement of the fact that HIV was
incurable and that an infection with the virus would result in a reduced life span.
In respect of his sentence the only factor which was to his benefit was the fact he was
HIV positive. The trial court held that custodial sentence was the only option based on
the circumstances. The appeal court found no fault with this judgement. There was no
misdirection regarding the manner of which the magistrate considered the sentence.
The appeal on the conviction and the sentence were dismissed.

5. Consent may be expressly or tacitly given.

6. Consent must be given before the otherwise unlawful act is committed. Approval
afterwards does not render the unlawful act lawful. Consent may be revoked prior to
the act, but not after the act. One cannot consent to something which is against public
policy.
7. Consent must be given by the complainant herself. Exceptional circumstances do exist
in which a parent can give consent to the child’s operation.

Other justification grounds.

This is not an exhaustive list of defences and new ones may develop in the law.
If a ground of justification does not apply due to the requirements been unfulfilled, the
possibility of putative defence in respect of the justification ground remains.
1. negotiorum gestio (‘presumed consent’ – Snyman)
If the accused violates the interests of the injured party and fulfils the definitional elements of
the crime, then the conduct of the accused may be justified if the conduct was engage
therein in order to further or defend the interests of the injured party. The consent of
the injured party is not obtainable, but it is presumed that the injured party will
consent to the accused acting in such a manner.
Requirements for the defence of presumed consent.
a. It must be impossible for the accused to obtain the consent of the injured party in
advance. If consent is obtainable beforehand then the accused may simply rely on the
defence of consent.
b. The must be reasonable ground to presume that the injured party would consent to the
accused engaging in such conduct. This is an objective test.
c. The reasonable grounds for assuming the injured party would consent must exist at
the time the accused acted.
d. At the time of perform the act the accused must know that the reasonable grounds for
engaging in such conduct exists.

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 e. The accused must intend t protect the interests of the injured party.
f. The accused’s conduct must not go beyond that which the injured party would have
presumably consented to.
g. The accused need not succeed in protecting the interests of the injured party.

2. Official capacity
An unlawful act is justified if the accused is entitled to perform such act, provided that
the act is perform in the execution of his or hers duties.
E.g. Court clerk who locks away evidence for safe keeping, handles illegal drugs is
not guilty of the crime of possession of drugs.

3. Superior order or obedience to orders.

This defence questions whether a person is justified in acting in an otherwise unlawful
manner because they were subordinate to another whose orders they had to obey.
This applies usually to soldiers and police officers.
There is a distinction between acts committed in obedience to lawful orders and acts
committed in obedience to unlawful orders. The former is justified because the actor
is merely carrying out their official duties. The contention arises in respect of the
latter, unlawful order.
A soldier may be required as part of the proper performance of his duties to engage in
conduct that would attract penal sanctions if such conduct was committed by a
civilian. Therefore, if they commit acts in the performance of the duties that would
otherwise be illegal, it will be deemed to be legal. There is no liability that attaches to
such conduct because he or she is authorized by the state to conduct himself or herself
in that manner.
There are two approaches in respect of this defence.
One may argue that the subordinate must blindly obey the orders of there superior.
This is an unacceptable approach if the order involved the commission of a serious
crime. A soldier will not be justified in committing rape if he is ordered to do so by
his superior officer.
The other view holds that the fact the subordinate obeyed the order is not a ground for
justification. The subordinate must determine whether the order that was given was an
unlawful order or a lawful order.
Manifestly unlawful orders may not be obeyed. The subordinate must take the middle
path between the two approached mentioned above. The actor must satisfy the
demands of morality and acknowledge the existence of discipline in armed forces.
Section 199(6) of the Constitution holds that no member of any security force may
obey a manifestly illegal order.
The court held in the case of S v Mayers 1958 3 SA 793 that the defence is
applicable only if the accused brings about no more harm that is necessary to
execute the order.

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 Requirements for the defence
a. The order must emanate from a person lawfully place in authority for the
accused.
b. The accused must have been under a duty to obey the order.
c. The order must not be manifestly unlawful
d. The accused must have done no more harm than was necessary to execute the
order.
In the cases of S v Shepard 1967 4 SA 170 (W) and S v Sixishe 1992 1 SACR 624 it
was held that the accused may not rely on the defence if the accused knew that the
order was unlawful. However, she may rely on the defence if she was acting under a
mistaken belief which led her to believe that the order was lawful. She was not aware
of the unlawfulness therefore had no intention to commit the crime.
The subordinate may also act out of necessity if the superior threatens to harm to
subordinate if the orders are not complied with.
In the case of S v Banda 1990 (3) SA 466 (B) the court held that the law recognises
that obedience to superior orders as a case of compulsion, and is prepared to regard
any unlawful act done in the obedience to such orders as justified. The state appointed
soldiers to act in it’s interest and the state cannot punish the soldiers for acting in
accordance with those orders.
The defence is only available where the act was done in response to the order of a
lawfully constitutes superior officer
In the case of R v Werner 1947 (2) SA 828, the command to kill a fellow prisoner was
not given by a South African in command of the prisoners but by a German officer
who was secretly hding in the camp. The defence failed.
The defence does not operate successfully in respect of orders given from the leaders
of liberation organisations or guerrilla fighters.
In the case of S v Andreas 1989 (1) PH H 38 (SWA), the accused claimed contended
that he acted in the execution of an order received from a commander of the Peoples
liberation Army of Namibia (PLAN) to plant a car bomb and cause that bomb to
explode. The court held that a soldier is expected to carry out lawful commands.
Evidence showed that Johnny Mutwa was an officer on PLAN. However, soldiers and
officers of PLAN are not regarded as lawful. Mutwa was not considered as a person
who can issue lawful commands. Therefore, there was no duty on the accused to obey
the command according the law applied in the SWA.
Duty
In respect of duty, as long as there is a duty upon the soldier to obey an order he may
have reliance of the defence. The duty to obey is determined by the law establishing
the hierarchy of authority in the defence force. This code of discipline is established
under the Defence Act of 1957. The courts are reluctant to allow a soldier to invoke
this defence if the soldier has carried out an unlawful order, and if he claims that he
merely acted because he was under a duty to obey the order.

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 In the case of R v Smith 1900, the facts were such that during the Anglo-Boer war, the
accused was a soldier in the British army and he was sent to arrest the occupants of a
farm who were suspected of been in communication with the Boer forces. The
farmworker was told to produce bridle and he did not. The officer reported this to his
captain and the captain ordered the officer to shoot the farmworker if he did not
produce the bridle. The accused shot and killed the farmworker when the worker
delayed in the production of the bridle. The court convicted him of murder and the
case was appealed. The appeal court had to decide if the accused was under a duty to
obey the order. The court highlighted two possible extremes. The first was that
absolute obedience is required and the soldier is always excused if he obeys, and
second was that the soldier is only bound the obey lawful orders and the soldier would
be liable if he acted in compliance of an unlawful order.
In the case of R v Smith 1900 17 SC 561 the court adopted the middle course, and
reject the two approached outlined above. The court held that a soldier is compelled to
obey an order only if the order is manifestly lawful. If the order is manifestly
unlawful, the officer may not obey it, and if the officer does obey it then he or she acts
unlawfully. This rule was confirmed in the cases of S v Banda 1990 3 SA 466 (B) and
S v Mohale 19992 SACR 1 (W). The accused was acquitted because the order was not
so plainly illegal that Smith would have been justified, under the circumstances, to
refuse such as order.
It seems unfair to hold a soldier liable for carrying out an order that proved to be
unlawful. This imposes an obligation on the soldier to question the lawfulness of an
order so that he protects himself from liability. This practise would undermine the
discipline that is required in the armed forces.
In the case of US v Calley 1973, the court held that if a person determines an order is
illegal then this in of itself does not assign criminal responsibility to a person
following the order and the subsequent acts carried out in compliance with the order.
Soldiers are trained to follow orders an special attention is given to obedience of a
orders on the battlefield. The military requires obedience to orders for proper and
effective operations. The obedience of a soldier is not like the obedience of a robot. A
soldier is a reasoning agent who is obliged to respond, unlike a robot or a machine but
as a person. The law considers these factors when assessing if criminal liability for
acts done in compliance with illegal orders.
The South African courts have refused to acknowledge that simple obedience to an
order can constitute a complete defence. However, it has been argued that it would be
unjust to punish a soldier for obeying the orders of a superior officer. Therefore, the
courts have held in the case of Banda supra that a person may rely on the defence if
the order is not manifestly unlawful.
If the order states that the soldier should kill civilians or rape a woman then it would
be manifestly and palpably unlawful, and the law requires that a soldier obey orders
which are only lawful, as noted in the case of Banda supra.
If a subordinate acts such that he complies with an unlawful order given to him by a
superior will be excused provided that a man of ordinary sense and understanding

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 would, under the same circumstances, know that such an order is unlawful, or if the
accused knows for a fact that the order is unlawful.
The test is objective to determine whether the order was lawful or unlawful.
Therefore, if it appears that a reasonable soldier in the position of the accused, would
understand that such an order is unlawful then the accused should not have obeyed
this order, and his conduct is unlawful, as observed in S v Banda.
Necessary
The soldier must not have caused more harm than is necessary for the execution of the
order.
Putative obedience to orders (Defence of mistake)
This defence is in respect of the a plea by the accused in which he contends that he
genuinely believed that the law required him to obey the order and therefore he did so.
If the accused has a genuine belief then the accused is entitled to be acquitted because
he lacked intention to commit a crime. Putative defences exclude culpability.
However, if the order manifestly illegal then the courts will infer that the requisite
knowledge of unlawfulness is present, therefore the accused should have known that
his conduct was unlawful.
Superior orders as a defence in international criminal law.
The defence of superior orders if outlined in Section 33 of the Statute of the
International Criminal Court. The formulation contained therein coincide with the
formulation contained in South Africa legislation.
The South African legislation holds that if a person commits a crime resulting from an
order of government or a superior order, be it military or civilian, then that person
shall not be granted immunity from criminal liability. The person in this situation may
be granted immunity from criminal liability if the person was under a legal obligation
to obey the order of the government or superior, the person did not know that the
order was unlawful, or if the person could not recognize that the order was manifestly
illegal.
Genocide and crimes against humanity are manifestly illegal. Section 4 of the
Implementation of the Rome Statute of the International Criminal Court Act states
that the fact that a person was a member of a security force or armed force and
therefore was under a legal obligation to obey the manifestly unlawful order of
government or a superior is not a defence and it is not a ground for the reduction of
the sentence once that person is convicted of a crime.
There are punishments if the armed forces engaged in the conflict falls within the
framework of the Geneva Convention of 1949, then the subordinate who contravenes
the law is entitled in terms of international law to be treated as a prisoner of war.
These conventions, to which South Africa is a signatory, were restricted to armed
conflicts between two or more sovereign states. This imposes a limitation upon
guerrilla conflicts and liberation struggles because these conflicts fall within the
borders of a single state and therefore cannot be classified as international.

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 Participants in such conflicts have to be dealt with in terms of the ordinary criminal
law of that country. There was a change in respect of guerrilla wars and liberation
struggles that was brought into effect by the First and Second Geneva Protocols of
1977.
Article 1(4) of the First protocols treat those people fighting against colonial
domination and against racist regimes as those involved in international conflict. A
combatant in this type of conflict is entitled to be regarded as a prisoner of war and
South Africa has ratified the first protocol.
Case: UNITED STATES v WILLIAM L. CALLEY, JR. (No. 26.875)
Calley, the accused, stands convicted on 22 counts of murder and the assault of a
young child of the age of 2 years old. The killings took place on 16th March 1968 in
South Vietnam. The Army Court of Military Review confirmed the conviction and the
accused was sentenced to 20 years confinement with hard labour. The court had to
consider whether the public attention in respect of the trial denied the accused the
right to a fair trial. The defence argued that the pretrial publicity made it impossible
for the accused to have a fair trial. The court dismissed this application despite the
numerous pieces of evidence in that regard. The court held that the public is entitled
to the right to comment and discuss criminal prosecutions.
Calley was a platoon leader in the C company. C company was operating in the area
of My Lai, where the killings had taken place, but they suffered casualties by sniper
fire. Captain Ernest L was the commanding officer of C company and had declared a
full assault on My Lai.
Captain Medina testified that he had not told the soldiers to kill woman and child, but
Calley had testified that Medina had told them to waste every living thing. Calley
obeyed the order to kill all the civilians in the village. Calley, being the Lieutenant,
instructed another named Meadlo to kill the villages he was guarding, consisting of
30-40 woman and children.
There company moved from this point and encountered another group of civilians
been held captive. Calley ordered the civilians into a ditch and opened fire on them.
Two soldiers refused to join in the killings of those in the ditch. The testimony of
many soldiers provide evidence which implicates Calley as been the direct cause of
the deaths of women and children in the custody of the C company.
Military law states that the killing of an unresisting prisoner of war is murder.
Calley’s main defence was that he acted in execution of Captain Medina’s orders to
kill everyone at My Lai 4.
The court held that the accused is guilty because he knew that the order was unlawful
but he nevertheless carried out the unlawful order, regardless of whether Medina had
made such an order or not. The court held that the acts of a subordinate done in
compliance with an unlawful order given to him by his superior are excused and
impose no criminal liability upon him unless the superior order is one which a man or
ordinary sense and understand would know to be unlawful or if the order in question
was actually known to be unlawful by the accused.

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 To determine if Calley had knowledge regarding the unlawfulness of the order the
court had to question all the relevant facts and circumstances, the accused’s rank,
educational background, schooling, other training while at the army, basic training,
experience in dealing with friendlies and hostiles, his age and other factors which
disprove or prove the knowledge of the legality of the order.
The court held that if the accused conduct does not point to knowledge of
unlawfulness then the standard of the reasonable person or a person of ordinary sense
and understanding must be implemented. A subordinate being allowed to question the
lawfulness of an order would amount to insubordination and this would subvert
military discipline. The subordinate must obey the order if it is prima facie lawful.
The defence argued that the accused was a common person and he could not be
expected to know the intricacies of the law to the extent that killing innocent people
who have displayed an unresisting behaviour in times of war to be regarded as
criminal. The court pointed out that the accused is presumed to know that the killing
of such people is unlawful and that ignorance of the law if no excuse.
4. Impossibility
This defence justifies the failure to comply with a positive legal obligation as held in
the case of R v Canestra 1951 2 SA 317 (A). The defence pertains to the objective
unlawfulness of the conduct of the accused. An example would be if a person is
summoned to appear in two different courts in different provinces on the same day.
Requirements for the defence
a. The defence is only applicable if the legal provision which is infringed places a
positive duty on the accused. The legal provision must state that the accused must
engage in a certain action. The defence is only applicable if the prosecution
contends that the accused failed to do something.
The accused may not rely on the defence if the legal provision the was infringed
places a prohibition on the accused, i.e. prohibiting the accused from engaging in
certain acts. The accused must merely refrain from doing such acts in order to
avoid liability.

b. It must be objectively impossible for the accused to comply with the legal
provision. It must be impossible for any person place in the position of the
accused to comply with the provision. The fact that the law in exceptionally
inconvenient for the accused to comply with does not render there conduct lawful
and impossible to comply with the provision. This was observed in the case of S v
Moeng 1977 3 SA 986
c. The accused cannot rely on the defence if the accused is responsible for the
circumstance she finds herself in, as decided in Attorney-General v Grieve 1934
TPD 187. If the accused commits an unlawful act she may be punished for it, but
if she commits an act with the foresight that it might cause her to be in a situation
of impossibility, then she may not rely on the defence of impossibility.

5. Chastisement

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 The defence of disciplinary chastisement administered by parents has been declared
unconstitutional, this was decide in the case of Freedom of Religion South Africa
(FORSA) v Minister of Justice and Constitutional Development 2020 1 SACR 113
(CC).
Punishment should be regarded as reasonable when it is applied to actual wrongdoing.
The court must consider the character of the offence, the age, the gender, build and
health of the child and the degree of force applied, as observed in S v Lekgathe 1982 3
SA 104
In the case of S v YG 2018 1 SACR 64 (GJ) the court held that this defence was
unconstitutional, and it led to an appeal to the Constitutional court in the case of
FORSA.
The court held that the right to chastisement was conduct falling within the definition
of the crime of assault and it unjustifiably infringes the right to be free from all forms
of violence, as per section 12(1)(c) of the Constitution, and the right to dignity, whilst
read in conjunction with the principle which holds that the bests interest of the child
are paramount in all matters concerning the child. The court held that there are less
restrictive means of instilling discipline in children. The court did not mention
anything regarding which means should be employed by parents when disciplining
their children.
The judgment in FORSA states nothing about disciplinary measures involving threats.
The crime of assault includes threats to the complainant, against their bodily integrity.
It must be determined whether disparaging statements will be considered to be crimen
injuria. There are a host or issues. Will a parent be guilty of kidnapping if the send
their child to the confines of their room. The court held that the only relief available to
parents is the de minimus non curat lex rule.

Under the influence of English law, it used to be recognised that parents, guardians or
school teachers could inflict moderate corporal punishment upon children. The United
Kingdom has approached the European Court of Human Rights to contend that
corporal punishment infringes the provisions of the European Convention on Human
Rights.
In the case of Campbell and Cosans v United Kingdom 4 EHRR 293 (1982) the court
held that if no corporal punishment was inflicted then there was no violation of article
3. Article 3 prohibits torture or inhumane or degrading treatment or punishment.
However, if punishment had been imposed then it would be unlawful. This case was
followed by the legislature in England passing the Education act 1986 which
abolished corporal punishment in only state supported schools.

In the case of Costello-Roberts – The United Kingdom 1978, the European court of
Human Rights held that the British government could not absolve itself from the
responsibility by delegating its obligations to private bodies or individuals. Corporal
punishment remained legal for pupils in private schools until 1999. The South African
constitutional court had laid down that corporal punishment as a possible sentence to
be imposed by section 294 of the Criminal Procedure Act would be unconstitutional.
Section 10 of the South African Schools Act sets out the position of the legislature in

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 respect of corporal punishment such that no person may administer corporal
punishment at a school to a learner.
The constitutional court denied any existence of corporal punishment been confined
to state schools only.

Case: Christian Education South Africa v Minister of Education 2000 (4) SA 757
(CC)

In the above case an association representing private schools challenged the validity
of section 10 of South African schools Act (SASA) on the ground that it infringed on
their religious freedom. The appellant contended that the parents and guardians of
pupils in private schools have consented to their children being punished by means of
corporal punishment.
The court rejected the appellants claims because the parents right to religious freedom
was justifiably limited, and that private schools operate in the public domain,
therefore it is reasonable to expect the school to make suitable adaptations to non-
discriminatory laws that impact on the codes of discipline.
The corporal punishment ban applies to private and public schools. If corporal
punishment is deemed to be inhumane, degrading and affronts dignity, therefore it
cannot be saved by the limitations clause. The must apply to all forms of corporal
punishment.

Corporal Punishment by parents.

In order to determine if parents are allowed to inflict corporal punishment, one must
consider three possible options.
The first emphasizes the rights of children. There must be a focus on the dignity of all
persons especially those who are vulnerable. All forms of corporal punishment must
be prohibited and may be allowed only in respect of those hidings which are of a
minor nature. The is in accordance with Article 19 of the United Nations Convention
of the rights of a child 2002, which holds that the state must take all appropriate
measures to ensure that the child is protected from all forms of physical or mental
violence, injury, abuse or ill-treatment.
The second approach recognizes parental authority and permits a moderate
chastisement which may be imposed within a family or domestic situation for
educational or corrective purposes. If chastisement is for these purposes then no
liability will attached to such conduct, provided that the conduct has not reached the
limit which may be considered to be cruel and inhumane treatment. In section 51 of
the Criminal Justice Act of Scotland there is a definition which prescribes the precise
limits regarding that which is to be considered reasonable physical punishment of a
child. In the case of H 2002, the court held that the it must consider the nature and
context of the defendants behaviour, nature of the child’s conduct, the duration and
frequency of the punishment, any physical or mental effect on the child, the child’s
age and their personal characteristics, and any given reasons given by the defendant
for administering the punishment. It determines which conduct that will be considered
to be unlawful.

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 The position of Israel in this regard was determined in the case of Plonit v Attorney
General (1998). In this case the appellant had struck her children on the buttocks and
slapped their faces on numerous occasions over the course of a few years. She had
struck her daughter with the vacuum cleaner and punched her son in the face. She was
convicted of assault and abuse and was sentenced to one year, suspended sentence,
imprisonment and with probation. She appealed the judgement . Her defence was that
any discipline imposed on her family was educational and corrective. The court
distinguished between abuse that required a degree of seriousness, cruelty,
humiliation and degradation and the crime of assault which may be justified by
moderate disciplinary chastisement. The court found her guilty of abuse due to the
continuous and systematic nature of her conduct. The court focused on the defence of
disciplinary chastisement, and noted that children are not the property of the parents.
The court held that corporal punishment has a detrimental and counterproductive
effect on children and that the abused often becomes the abuser in late life. The court
held further that abuse violates the child’s right to dignity, therefore corporal
punishment is not allowed. The court held that if is was a minor case of chastisement
then criminal liability should not follow.

The common law defence of reasonable chastisement.

A blanket ban on all forms of corporal punishment violates the parents rights. It
infringes on the right to privacy and family life, and religious freedom. The issue of
religious freedom was dealt with in the South African case of Christian Education
South Africa v Minister of Education 2000 and the Constitutional court rejected the
argument.

In the case of A v United Kingdom 27 EHRR 611 (1997), the European Court of
Human Rights held that the repeated beating of a young boy by his stepfather with a
garden cane constituted inhumane or degrading punishment. The stepfather raised the
defence of reasonable chastisement. The court held that in respect of domestic law,
the United Kingdom did not provide adequate protection from inhumane or degrading
punishment. The court held further that the right to physical integrity had been
infringed, and there existed a failure to protect the boy from discrimination. This
judgement became binding on 40 European states that signed the European
Convention on Human Rights. A weakness that was identified in respect of the case
was that is assumed a certain level or permissible corporal chastisement in home
while it prevented other forms of cruel and inhumane punishment. The court failed to
define whether a single stroke with a leather belt on the bare legs constituted cruel and
inhumane punishment.

The Defence of disciplinary chastisement in South Africa.

The case of Christian Education left this question of law undecided. Section 39(3) of
the Constitution holds that the common law and customary law must be compatible
with the Bill of Rights. The child’s rights approach denies parents the common law
defence of reasonable chastisement and establishes a complete ban hence it is the

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 most acceptable position in South Africa. The only occasion when a parent should be
allowed to use force against a child is to protect that child from physical harm. The
approach poses a problem because it is contrary to the reality that all rights are
qualified. Another problem is that some individuals may hold a mistaken belief that
they are entitled to discipline their child. If their belief is genuine then it will exclude
culpability, that is intention. Another approach is known as the restorative justice
approach holds that parents make full admissions to the police about their conduct and
can be diverted from being prosecuted by voluntary agreeing to attend conferences on
how to deal with children.

Mistaken belief in the existence of a defence of chastisement.

Putative disciplinary chastisement does exist. This would occur when there is a
genuine but mistaken belief regarding the ability to use corporal punishment and in
such a case the accused may be able to escape liability due to a lack of intention. The
mistake of law would have to be judged according to the rule established in S v De
Blom 1977 (3) SA 513 (A) which questions whether the mistake was genuine. The
test is subjective.

Child Abuse.

Section 42 and 50 of the Child Care Act 1983 serves to protect children from abuse.
Section 50(1) of the Child Care Act limits parental authority and provides that any
parent or guardian or any person in custody of a child who ill-treats the child or
allows the child to be ill-treated, or who abandons the child will be guilty of an
offence. Section 50(2) of the Act stipulates the punishment of any person who is
legally obliged to maintain a child and is able to do so fails to provide the child with
adequate food, clothing, accommodation and medical aid.

Case: YG v S 2018 (1) SACR 64 (GJ)

This case dealt with the CRC provisions in particular Article 19 which deals with the
protection from abuse and neglect, general comment number 8 holding that the right
of the child to protection from corporal punishment and other cruel or degrading
forms of punishment, general comment number 13 which holds that the right of the
child to freedom from all forms of violence, and the domestic provision of South
Africa in the form of the Constitution, in particular sections 9, 10, 12, 15, 28 and 31.
Finally the case dealt with the common law defence of reasonable chastisement.

The facts of the case were such that a man was charged on two counts of assault. One
was of the assault of hie 13 year old son and the other was of his wife. The man hit his
son because the boy was watch pornography and had lied about doing so. The court

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 held that the defence of violence been used against a child as reasonable chastisement
for the purposes of discipline was unconstitutional.
The legal issue face by the court was in respect of corporal punishment and whether
the defence of reasonable chastisement for assault committed by a parent against a
child violates the child’s constitutional right.
The court held that the reasonable chastisement defence violated children’s right to
bodily and psychological integrity under section 12 of the Constitution. The court
held that the defence violated the childs right to dignity as per section 10 and 28 of the
Constitution. The court held that violence against a child violates the right to physical
integrity and it involves degradation and a loss of dignity. The court also held that it
unfairly discriminates against children because an adult would have the protection of
the law against such conduct whereas the child would not.
This violates sections 9(1) of the Constitution which holds that all have the right to
equal protection of the law. The court held that permitting reasonable chastisement
would children who are vulnerable and who deserve special protection because the
best interests of the child are paramount. There were no clear standards as to whether
a level of violence was justifiable. The court, when considering the limitations clause,
held that less restrictive means of achieving the same purpose do exist and those
should be adopted. The court held that the defence creates an aspect within domestic
households which is unreachable by the state and it is not conducive to providing
justice and protection to children. The courts dismissed contentions which held that
abolition of the defence would result in an increased number of parents being arrested.
The court dismissed the arguments which were claiming that reasonable chastisement
was justified due to the religious rights of the parents, and the court held that
children’s rights are not subjected to the religious views of their parents.

The court cited CRC and other human rights instruments when deciding the case. The
court held that by ratifying the CRC, South Africa bound itself to take all legislative,
administrative, social and educational means to protect the child from all forms of
physical abuse, violence or injury while in the care of the parent, the state had the
responsibility to ensure all school discipline procedures were administered with
respect to the child’s human dignity and in accordance Convention. Violence against
children is non-justifiable and preventable. Every child must be recognised as a holder
of rights and as an individual. The primary role of families is to give-care and provide
protection. National law should not in any way erode the child’s absolute right to
human dignity.

6. Trifling nature of act as a defence – de minimus non curat lex

The law does not concern itself with trifles. Examples, stealing a pin, or cutting the
neighbours hedge such that only a few twigs are broken.
In the case S v Kgogong 1980 (3) SA 600 (A) the appeal court refused to uphold a
conviction of theft when the accused merely remove a piece of paper which was
regarded as waste.
The rule may act as a complete defence or as a ground for the mitigation of
punishment. The conduct of the accused remains unlawful and the accused acts with

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 the necessary culpability, but these types of acts should not be brought to court
because it will waste the court’s time. The essence is in respect of prosecutability.
The court must consider a number of factors which underpin this rule.
a. Purpose of the criminal law
b. Issues of practicability
c. Speedy administration of justice
d. Value, size and type of harm caused.
The application of the De minimus rule is justified because criminal law should be
applied to serious misconduct, it protects the accused from criminal conviction and it
saves the court from been swamped with trivial matters.
Over application of criminal law will lead to the erosion of authority of criminal law.
The rule allows for the proper functioning of criminal law and upholds the authority
of criminal law.

7. Entrapment
Not a ground of justification. The fact that the police used a trap to obtain evidence
against the accused, does not justify the unlawful conduct of the accused. However,
the accused is not a necessarily guilty of a crime committed as a result of entrapment.
The accused my escape liability if the court finds that the evidence in respect of the
entrapment if inadmissible.
The person setting the trap may only afford the accused an opportunity to commit the
crime if the accused is prone to committing that type of crime. Another eventuality
which may exist is if the accused is not prone to committing such a crime and is
incited or persuade by the person setting the trap to commit such crime. In this case
the defence of entrapment shall be allowed.
In section 252A of the Criminal Procedure Act holds that there should be a
exclusionary rule to control the abuse of the trapping system. This rule would aim to
exclude certain evidence from trial.
The police may only use a trap, and such evidence would be admissible if the police
do not go beyond providing an opportunity for the accused to commit a crime. The
court must consider the nature of the offence, the type of inducement, the degree and
persistence of the trap and whether the trap amounted to an exploitation of the
person’s being trapped emotion or economic circumstances, and whether the person
setting the trap had a suspicion that the person they were trying to trap had previously
committed a similar offence. If there is excessive inducement, then that evidence may
be inadmissible.
The court may allow evidence to be admissible, even though the person’s setting the
trap conduct went beyond providing the person being trapped with an opportunity to
commit an offence if, the evidence was not obtained in an improper way, the
rendering of the evidence would not lead to an unfair trail or hinder the administration
of justice. Even if the evidence was improperly obtained, the court may still allow the
evidence. In making this decision the court must weigh the public interest against the
interests of the accused, the court must consider the nature and seriousness of the

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 offence, whether it would be difficult to uncover the commission of that type of
offence, and whether any constitutional rights were infringed.
If the trap merely offers an opportunity to commit an offence then it does not provide
a defence to the accused, it does offer a defence if the accused unwillingness to
commit the crime is overcome by incitement.
S v Nortjé 1996 (2) SACR 308 (C) – in this case the person setting the trap has
entered into an affair with the accused. The trap was acting out of emotional
consideration.
S v Hayes 1998 (1) SACR 625 (O) – the persons reluctance to enter into criminal
activities was overcome by persistent persuasion. The accused gave in and was
charged with committing a crime, and the court held that the persuasion had gone
beyond merely providing an opportunity to commit a crime.
In both case the unwillingness of the accused to be involved in criminal conduct was
overcome by other methods.
Section 252(5)(A) of the Criminal Procedure Act states that the person setting the trap is not
criminally liable in respect of their conduct relating to the entrapment, only if that person
acted in good faith.
Entrapment may violate the entrapped persons right to privacy and the right to a fair trial.
In the case of Mendes and Another v Kitching and Another 1995 (2) SACR 634 (E), the court
held that the right of the accused not to incriminate himself or his/her right to silence if not
the issue in entrapment cases. An all encompassing ban on the use of trapping procedures in
order to subvert a fair trial is not justified. Trapping is not unconstitutional and it is a
technique used by the police.
Euthanasia
The consent of the deceased can never make it lawful to kill another person.
In the case of S v Hartmann 1975 (3) SA 532 (C), Hartmann was a doctor and his father was
very old, terminally ill and in great pain. The accused hastened his fathers death by
administering a fatal injection, and he was charged with murder.
At trial, the accused contended that he asked his father if he wanted to sleep, and his father
nodded in agreement.
The court held that even hastening a persons death by a few hours is murder. The court held
that even if the deceased did consent, it was not a defence for murder. The court held that
assisting in a suicide is unlawful.
The accused was convicted of murder but he received a suspended sentence. The law
distinguishes between active and passive euthanasia. The court felt sympathy for the accused
and hence his sentence was suspended. The former involves actively hastening the persons
death and the latter involves merely ending a fruitless attempt to save a life, or prolong a life,
when the patient has no reasonable prospect of survival, example disconnecting life-support,
withholding nasogastric feeding or declining to resuscitate a patient in crisis. In the case of
passive euthanasia two doctors will determine if a person is clinically dead, such that brain
stem functioning, circulatory functioning has ceased and whether the person requires a
cardiopulmonary bypass machine for survival. The Hartman case is a case of active

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euthanasia. If the length of the ailing persons life is unknown and they are not supported by
any machines then ending this persons life would be an act of active euthanasia.
In the case of S v Williams 1986 (4) SA 1188 (A), Williams shot the deceased. The deceased
was taken to hospital and put on a respirator. The deceased was pronounced brain dead within
48 hours, therefore the respirator was disconnected. The accused was tried for murder but he
contended that it was not his conduct which caused the death of the deceased, and that it was
the doctors turning off the respirator which was the legal cause of the death of the deceased
and that the doctors conduct of switching of the life-support machine was a new intervening
act. He was convicted and then he appealed the case. This case has some relevance in respect
of the issue of causation, such that the court must determine whether the accused or whether
the doctor is the legal cause of the deceased’s death. The court will question whether but for
the shooting committed by the accused against the deceased would the deceased have needed
to visit the hospital and require medical treatment, the answer to this is in the negative,
therefore the accused conduct is the factual cause of the deceased’s death. Legal causation
must be determined and the court uses novus actus interveniens or the adequate cause test.
The adequate cause test holds that in the normal course of human experience would the
conduct bring about that particular result. The accused shooting the deceased’s would have
led to the death of the deceased in the course of normal human experience, therefore the
accused was the legal cause of the death of the deceased. The appeal court held that the injury
inflicted by the accused was life threatening, and that the doctors were keeping the deceased
alive by artificial means. The doctors did not cause the death of the deceased, and it was
merely an ending a fruitless attempt to save a life. The conviction was upheld. Active
euthanasia will not be tolerated by the courts.
Medical doctors have a legal duty to provide treatment to patient, but they are not entitled to
provide such treatment if the patient has refused such care.
In the case of In re S v Grotjohn 1970 (2) SA 355 (A), the accused’s wife was manic-
depressive. The accused had an argument with the deceased, and the deceased told the
accused to give her a gun to shoot herself. The accused loaded the gun and gave it to her to
shoot herself. She shot and killed herself. The accused was charged with murder. The trial
court held that the conduct of the deceased was independent and it was her own voluntary act.
The court a quo held that it was a novus actus interveniens, and acquitted the accused of the
charge.
On appeal the Minister of justice put forth two questions of law to the court. The first was
whether a person who instigates, assists or places another person in a position to commit
suicide commits a crime, and if so what crime does that person commit. The appeal court
held that the causal chain of events will not necessarily be broken by the suicide committed
the deceased, as their final act. The court held that depending of the circumstances of the
case, the accused may be guilty of murder or culpable homicide. If a person supplies the
instrument that is necessary and required for the deceased to kill themselves has a part to play
in respect of the causation for the death of that person who has killed themself. If the accused
does so knowing the intention of the suicidal person is to kill themselves then the accused
would be guilty of murder. The attitude of society towards death and voluntary euthanasia are
not static. It can be argued that a person who is in a permanent vegetative state should be
permitted to die with dignity.

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Clarke v Hurst No 1992 (4) SA 630 (D)
In the case of Clarke v Hurst No 1992 (4) SA 630 (D), the court based it’s decision on the
legal convictions of the community. The court held that a wife who is the curatrix of her
husband who is in a vegetative state, would not be acting unlawfully in authorizing the
withholding of his life-support system.
South African Law Commission in it’s report on euthanasia and artificial preservation of life
recommends the enactment of legislation to provide for:
a. A MP under certain conditions, may cease or authorize the cessation of all further
medical treatment of a patient, if that patient’s life functions are being maintained by
artificially while that person has no respiratory and circulatory functions or her
brainstem does not register any impulse.
b. A competent person may refuse any life-sustaining medical treatment in respect of
any illness for which he or she may be suffering. It is of no consequence if such an
illness will cause the death of the person of hasten the death of that person.
c. A medical practitioner may provide relief to a suffering terminally ill patient by
prescribing sufficient drugs to control the pain, despite the fact that such medication
may hasten the death of the patient.
d. A medical practitioner may give effect to the power of attorney of a patient regarding
the refusal or cessation of medical treatment of the administration of palliative care,
provided that these instructions were given by the patient to the attorney while the
patient was competent.
e. A medical practitioner may under certain circumstances cease or authorise the
cessation of further medical treatment regarding terminally ill patients, if that patient
is unable to communicate their intention, provided that this is in accordance with the
families wishes.
It may be argued that the refusal to grant a person who has no reasonable prospect of
recovering from a life threatening disease the lawful right to agree to the withholding of life
support or the enlisting of others to end his suffering may be considered to be an act that
unreasonably and unjustifiably infringes that persons constitutional rights. It can be
concluded that the persons rights to dignity, freedom and equitable treatment would be
infringed by the refusal of the right to agree to the withholding of life-support.
The right to life is important but the person must have a certain of life. The right to dignity
will inform the right to life.
In the case of Pretty v United Kingdom (2002) 23 Human Rights Law reports, the European
Courts of Human Rights held that the UK authorities has not contravened the European
Convection of Human Rights by refusing to grant Dianne Pretty’s husband immunity from
prosecution if he helped his paralysed wife end her life. Section 39(2) of the Constitution
hold that when developing or interpreting the common law then the court must consider
international law in South Africa.

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The deceased’s intellect and capacity to make decisions were unaffected but her illness. She
was dying from motor neuron disease, a degenerative disease which affects the muscles, and
there is no cure for it.
The Director of Public Prosecutions refused grant her request, which was to guarantee her
husband freedom from prosecution of he assisted her commit suicide.
The DPP reasoning in this regarding was most probably due to legislation prohibiting the
assisting of another to commit suicide, section (2)1 of the Suicide Act 1961 makes assisting
another to commit suicide a criminal act.
The European court held that the refusal of the DPP was not a violation of the right to life
because the right to life is not analogous to the right to die, nor to die with dignity.
The court rejected the argument that the ending of the life would constitute degrading
treatment as there existed no positive obligation upon the state to sanction actions intended to
end the life of terminally ill patients.
The states argument was that by refusing her request it provided a prohibition on suicide
which was intended to protect the weak and vulnerable members of society, who were not in
a position to make informed decisions regarding acts concerned with the termination of their
life or the assisting of ending their life.
It may be contended that if the state allows an individual to commit suicide with impunity but
prohibits an incapacitated person from achieving the same objective by enlisting the help of
another, unfairly discriminates against the incapacitated person.
In exceptional cases, the accused who allows a terminally ill patient, with no reasonable
prospect of recovery, to die with dignity, may escape criminal liability for murder. The
accused in such a case would not be able to appreciate the unlawfulness of his conduct or to
act in accordance with such appreciation
Case: Stransham-Ford v National Director of Public Prosecutions et al [2015] ZAGPPHC
230
The facts of the case were such that the applicant was an unmarried adult male practising as
an advocate of the High court of South Africa in Cape Town. The applicant was the holder of
numerous degrees, including a MBA from UCT. He worked as an accountant and a tax
practitioner in London. He was the chief executive of a group of insurance brokers at Lloyds
in the city of London. The applicant worked as an advocate for 35 years and he has three
children, one of which is a daughter of 12 years old who was under the guardianship of the
mother.
The applicant had terminal stage 4 cancer and he had a few weeks to live. The cancer
developed in his lymph nodes and metastasized. The cancer has spread to his lower spine,
kidneys and lymph nodes. Upon inspection of the tests by a specialist it was suspected that
colorectal cancer had developed with the inclusion of the pancreas and liver cancer.
The applicant sought a request that a medical practitioner end his life or enable the applicant
to end hid life by the administration or provision of a lethal agent.

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He sought that the medical practitioner administering the lethal agent shall not be held
criminally or civilly liable for providing the lethal agent and causing the applicants death. It
was further sought that the act in question be recognized by the developing of the common
law such that the conduct be regarded as being lawful and constitutional in the circumstance.
There is a debate which stands, such that , there are palliative medical treatment which exists
that may improve the situation of the patient for a substantial length of time. The wider
societal aspects must be considered. With the advent of modern medicine and medicines such
as morphine, the probability that a person would die in pain is less than 10%, regardless of
kidney function. Hospice doctors and staff specialise in providing symptom control for
terminally ill patients. The provision of this service is easily accessible at the home of the
majority of patients. ‘
The applicant contended that he cannot die in dignity and that further palliative care was not
going to suffice his needs and his right to die in dignity. The applicant claimed that he
suffered severe pain, nausea, vomiting, stomach cramps, weight loss and weakness caused
from a decreasing kidney function. The applicant was unable to get out of his bed to have
injections and he had undergone numerous treatments including Chinese medicine, cannabis,
surgery, morphine and other pain inhibitors. The applicant could not sleep without morphine
and pain killers. The applicant was aware that death was imminent and he was not afraid of
death but he was afraid of dying a painful death.
The current position legal position is that assisted suicide or active voluntary euthanasia is
unlawful. This was due to the reliance on section 39 of the Constitution which holds that
when interpreting the Bill of Rights there must be a promotion of the values which underlie
an open and democratic society based on human dignity, equality and freedom, international
law must be considered, and when interpreting legislation the courts must develop the
common law and customary law to promote the objects of the Bill of Rights. Section 10
protects the inherent right to dignity makes provision for people to have their right to dignity
respected and protected. Section 12 holds that everyone has the right to have their bodily
integrity and psychological integrity, which includes the right to security and control over
their body.
In respect of the case of Clarke v Hurst No supra there is no difference between assisted
suicide by providing the sufferer with a lethal agent or by switching off a life support
machine. In light of the same conclusion it may be held that injecting a strong dose of
morphine to relieve pain with knowledge that this would result in a failure of the respiratory
system causing death. The court noted that the right to life incorporates the right to dignity,
therefore the right to life and dignity are intertwined. The right to life is more than a merely
existence, it involves the right to be treated as a human being with dignity. Human life is
substantially diminished without dignity. The current legal situation was brought into effect
before the establishment of the Constitution.
Euthanasia is in accordance with patient autonomy and is in accordance with the South
African Law Commissions recommendations. In the future the courts will implement
safeguards dependant on the merits of the case, hence an uncontrolled ripple effect will not
eventuate. The court must determine is the cancer would kill the person faster than the
palliative treatment. Life should not be maintained at any cost, and especially at the cost of

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the quality of life. The courts considered the Canadian Charter of Rights which has
similarities in respect of the South African Bill of Rights.
The finding of the court in the Stransham-Ford case was that the applicant was entitled to be
assisted by a qualified medical doctor who was willing to end the life of the applicant by the
administration of a lethal agent or by providing the applicant with the lethal agent to
administer himself. The common law crimes of murder and culpable homicide in the context
of assisted suicide, such that it absolutely and unjustifiably prohibit limits the applicants
constitutional rights to human dignity, freedom to bodily and psychological integrity, as
contained in section 12(2)(B) of the Constitution, this prohibition is in conflict with the
Constitution. There is no distinction between active and passive euthanasia. When life
sustaining treatment has been administered and then withdrawn the act of withdrawal is a
positive commission of an act. This act remains active and it is a positive step by the staff that
directly caused the death. The ruling in this case is not all-encompassing such that it is lawful
to commission an assist suicide, it was an exception in this case. The common law position
holds that a person cannot legally consent to their own death, there can be no consent given to
be assisted in suicide.

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