Minister van Polisie v Ewels 1975 (3) SA 590 (A)

[1] As a point of departure, it is accepted that no legal duty is incumbent on a person

in general to prevent someone else from suffering damage, even if such person
could easily prevent the damage from being suffered and even although such
person could be expected, on pure moral grounds, to actively prevent the
damage from being suffered. However, it is also accepted that in certain
circumstances, a legal duty is incumbent on a person to prevent someone else
from suffering damage. Should he fail to perform this duty, a wrongful omission
comes into being which could lead to a claim for damages. These cases are not
limited to the owner of property who, by omission, causes someone else to suffer
damages by something with regard to his land, in general, to cases where there
was certain prior conduct. Certain prior conduct or the control of property may be
a factor in the overall circumstances of a certain case where wrongfulness may
be concluded, but this is not a necessary wrongfulness requirement. It would
appear as if the stage of development is reached where an omission is regarded
as wrongful conduct and also where the circumstances of the case are of such a
nature that the omission not only evokes moral indignation but also that the sense
of justice of the community requires that omission should be regarded as
wrongful, and that the damage suffered should be compensated for by the person
who omitted to take preventative action. In order to determine where there was
wrongfulness, in a given case of omission, it is not about the usual negligence of
the bonus paterfamilias, but about the question, whether on the strength of all
the facts, there was a legal duty to act reasonably…
[2] Similarly, if a duty to rescue is regarded as a legal duty in certain circumstances,
a duty to protect would be a legal duty as well. And it would depend on all the
facts whether or not such duty is a legal duty. Apparently it is impossible to
determine in general when such legal duty would come into being. In the case
under discussion, we are dealing with a number of policemen who work at a
charge office, a building in the control of the police and where a normal citizen,
among others, can and has to go to lay a charge. According to the provisions of
section 5 of the Police Act, one of the duties of the police is the prevention of
crime. In so far as a normal citizen is concerned, there would therefore be a
different type relationship between him and a policeman on duty compared to a
relationship between him and a disinterested stranger. Where crime is
concerned, the policeman is not only a deterrent or someone who tracks people
down, but also a protector. The plaintiff was assaulted in the charge office which
was under the control of the police and in full view of a number of policemen for
whom it was jointly reasonably possible, even easy, to prevent the attack on the
plaintiff or to stop it. It is also an additional factor in this case that Wood, in these
particular circumstances, as a sergeant, was able to exercise authority over
Barnard. One should, however, note that the position of the policemen as
opposed to the plaintiff in the case under discussion, in principle would have
been the same if the assailant of the plaintiff were not a policeman.

1
[3] When taking all the circumstances into consideration, I feel that the duty that
rested on the policemen to assist the plaintiff was a legal duty and that since it
was an omission that took place in the course of the service performed by the
policemen, the defendant is liable.
[4] The appeal is dismissed with costs.

2
Mokgethi 1990 (1) SA 32 (A)

[1] It must therefore be accepted in favour of the appellants that the pressure sores
were formed owing to the deceased’s negligent omission to regularly change his
sitting position in his wheelchair according to medical instructions.
[2] I then come to the question whether, in the light of all the events, the gunshot
wound was the cause of death of the deceased, according to law. There is no
doubt that it was in fact a conditio sine qua non. This court, however, already
found that factual causation is not always sufficient to attribute the act of the
offender as legal cause of the consequence. In Minister of Police v Skosana 1977
(1) SA 31 (A) 34, where delictual liability was raised, Corbett AJ said the
following:
‘Causation in the law of delict gives rise to two rather distinct problems. The
first is a factual one and relates to the question as to whether the negligent
act or omission in question caused or materially contributed to ... the harm
giving rise to the claim. If it did not, then no legal liability can arise and cadit
quaestio. If it did, then the second problem becomes relevant, viz. whether
the negligent act or omission is linked to the harm sufficiently closely or
directly for legal liability to ensue or whether, as it is said, the harm is too
remote. This is basically a juridical problem, in which considerations of legal
policy may play a part.’
In S v Daniëls and Another 1983 (3) SA 275 (A) 331, a sentence appeal, Jansen
AJ pronounced as follows:
‘There can be little doubt that the determination of a “factual” causal
connection in our jurisprudence occurs on the basis of the conditio sine qua
non ... Without such connection between the offender’s act and the alleged,
challenged consequence complained of, there is no liability in general. On
the other hand, it is also clear that the offender should not be held liable for
all consequences of which his act is a conditio sine qua non – his liability
would then stretch too far and exceed the boundaries of reasonableness,
fairness and justice. Policy considerations demand that a line should be
drawn somewhere.’
[3] Although some authors are of the opinion that where causality is concerned, the
conditio sine qua non test is sufficient, and that liability is adequately limited by
the additional requirements of guilt and wrongfulness, they normally give the
latter concepts another meaning or purview than is usually the case. Most
authors agree that apart from the said test a further demarcation criterion is
necessary to determine juridical causation.
[4] In the jurisprudence and in literature – here in this country and overseas – there
are also champions of a range of criteria for the determination of juridical
causation; for example, the absence of a novus actus interveniens, "proximate
cause", "direct cause", the ability to foresee and adequate causation. … The
champions of these different criteria agree that: an act that is a conditio sine qua
non of a consequence can be too far removed from the consequence to be legally

3
 regarded as cause thereof. However, they do feel that a criterion according to
which a sufficient connection is required between the offender’s act and the
consequence is too vague. Hence the search for more exact criteria …
[5] In so far as the various criteria are concerned, it also does not seem to me that
they are more exact as a standard (the flexible standard) according to which on
the basis of the policy considerations it is determined whether a sufficiently close
connection exists between the act and the consequence.
[6] In the case under discussion, it must be determined whether the infliction of a
gunshot wound should be regarded as the legal cause of the death of the
deceased for the purposes of impute of criminal liability. However, we are here
dealing with a certain type of case, namely where the omission by the victim was
the immediate cause of his death. The question is now whether such omission
can give rise to the fact that, for the above-mentioned purposes, there is a
connection between the offender’s act and the victim’s death that is too far
removed. If not, obviously cadit quaestio. In view of the facts of this appeal the
question can be clarified as follows: Is the offender’s act ("the injury"), that is a
factual cause of the death of the victim, also the legal cause thereof if (i) the
victim failed to get medical assistance, undergo treatment or follow instructions
and (ii) that omission was the immediate cause of his death? (In order to avoid
repetition, I will from now on briefly refer to an omission that will comply with (i)
and (ii) as an omission by the victim. For the same reason I sometimes use a
phrase such as "breaking of the causal chain" as an indication of a situation
where an event in between causes a conditio sine qua non not being valid as
legal cause of the consequence.)
[7] The above question has not yet arisen that often in our jurisprudence. …
[8] As already stated several times, the ultimate question is whether there is a
sufficiently close connection between the offender’s act and the consequence
thereof. This criterion is so flexible that in its application to the facts of the case,
and particularly those in which an omission by the victim is featured, there is
indeed room for informed differences of opinion. Furthermore, it is not always
clear that when jurists consider negligent or unreasonable omission, they always
seem to have the same concept in mind. Should the reasonableness or lack
thereof of the victim’s omission be measured against an objective standard? Or
is the test relative in the sense that we should ask ourselves, given his
circumstances, characteristics, convictions and so on, whether the victim acted
unreasonably?
[9] Let us assume, for example, that A stabs B with murderous intent. The latter
dodges and merely gets a graze on his arm. Infection sets in and B sees a doctor.
The latter gives him an injection and tells him that this particular type of infection
can only be controlled by two injections. B is therefore warned that he has to get
another injection within a week, failing which the infection could become life-
threatening. Notwithstanding, B who is an ultimate but unrealistic optimist,
chooses to go on holiday to a remote resort where according to his knowledge
there are no medical facilities. Owing to his failure to get the second injection
within the prescribed period of time, the infection irreversibly gets out of hand.

4
 He dies but experts agree that if he had followed the doctor’s orders, his life
would not have been in danger at all.
[10] In the postulated case, few, if any, jurists would accept that A is still guilty of
murder. But he did wound B wrongfully; he had the direct intention to kill B, and
the injury was a conditio sine qua non of B’s death. Nevertheless, B’s omission
was so unreasonable and created such an unnecessary life-threatening
condition that the injury could legally not sufficiently be closely connected to B’s
death.
[11] On the other side of the scale, we have the case where B is inflicted a dangerous
wound, but not necessarily a fatal one. A reasonable person in the place of B
would have realised the seriousness of the wound and get medical help. Owing
to his primitive background and lifestyle, it does not dawn on B that his life could
possibly be in danger. Complications set in and B dies. It would then appear that
if B had consulted a doctor, which was practically possible for him, he would not
have died. Notwithstanding B’s negligence – according to an objective standard
– most jurists would probably not hesitate to attribute B’s death as being caused
by A’s conduct.
[12] Between, and probably also on both sides, the above cases can occur in various
situations where omission by the victim is the immediate or a contributing cause
of his death. I also doubt if a rule could be formulated which is decisive in all
imaginable cases, that is, a rule on the basis of which it can always be
established whether omission by the victim invalidates the causal connection
between the injury and the victim’s death for purposes of criminal liability. Too
many factors can play a role; such as, for example, the seriousness of the injury;
the circumstances, development level; the beliefs and so on of the victim; the
degree to which the omission is objectively unreasonable, and even the time that
elapsed between the injury and victim’s death.
[13] In the light of the above overview and the examples, I nevertheless feel that the
following criterion can be useful in a number of situations: As a rule, the
offender’s act, which is a conditio sine qua non of the victim’s death, is too far
removed from the consequence so as to lead to criminal liability if (i) an omission
by the victim to get medical or similar advice, to undergo treatment or to follow
instructions were the immediate cause of his death; (ii) the injury as such was
not life-threatening or no longer life-threatening at the relevant time, and (iii) the
omission was relatively unreasonable, in other words, unreasonable while taking
the characteristics, beliefs and so on of the victim into account. By saying that I
am not suggesting that if one or more of the requirements are not met, that the
causal chain cannot be broken. In view of the facts of this appeal it is, however,
not necessary to try to formulate any additional or more exhaustive guidelines.
[14] If the above-mentioned criterion is now applied to in casu, the injury of the
appellant cannot be regarded as the legal cause of the deceased’s death for the
purposes of the third charge. I am saying this for the following reasons:
(1) From the evidence it can be inferred that the wound was initially life-
threatening in the sense that, without medical help, the deceased would

5
 have probably died from it. That attribute of the wound was, however,
removed. The result was that when the deceased was discharged from
hospital, no immediate life-threatening danger existed. In fact, as long as
he could avoid pressure sores, according to medical instructions, he could
remain healthy except for his paralysis.
(2) It was precisely the deceased’s omission to follow instructions that lead to
the pressure sores. The pressure sores did in turn lead to septicaemia and
the deceased’s death. The septicaemia was therefore not a direct
consequence of the original injury. On the contrary, the pressure sores and
the accompanying septicaemia were the immediate cause of the
deceased’s death.
(3) The appellant was an educated black man who matriculated and was
employed by a commercial bank. Seen from the point of view of a
paraplegic his facilities at home were undoubtedly precarious, but the lack
of proper facilities did not play a role in him not following the instructions.
Precisely what these instructions were was not spelled out in the evidence
but it would appear that he was told to change his sitting position at very
short intervals. He could do this because he had full use of his arms. As
already mentioned, it was not proved that his omission to change position
as he was told to do could be attributed to a preceding depressive condition.
It also does not appear as if the deceased had any characteristics that could
offer an explanation worth mentioning for his omission. In favour of the
appellants it must therefore be concluded that the omission was objectively
as well as relatively unreasonable.
[14] In the light of this conclusion the appellants’ convictions and sentences on the
third count must be set aside. The advocates rightfully agreed that the appellants
were nevertheless guilty of attempted murder of the deceased. Consequently,
the verdict of being guilty of murder must be replaced by a conviction of
attempted murder. The appropriate sentence is one of 10 years’ imprisonment.

6
Van Wyk 1967 (1) SA 488 (A)
[1] …From the foregoing it would appear that homicide in defence of property is
undoubtedly permissible where the circumstances are such that the defender’s
body or life is in danger, and that the attack could not be warded off otherwise.
This is the type of case that will readily appear where the property has to be
defended against, for example, a determined thief or arsonist. Where the thief or
arsonist violently resists the defender, violence can be met with violence, which
is necessary to overcome it and keep the property, and if it cannot be warded off
by any other means, homicide would be lawful. All our authors seem to agree on
this. But then it would also not be a clear case of defence of property. As
Carpzovius rightfully observed, we then get to deal with self-defence. When
judging such case, the defence of the property becomes causal and incidental.
The difference of opinion arises when danger to the body and life of the defender
of property is ruled out, as in the cases of the run-away thief who takes the goods
with him as stated by Clarus, Perezius, Carpzovius, Boehmer and Schorer. As I
understand our authors, where no such danger exists, there would also be no
objection to essential violence which would endanger the life of the attacker. The
authors are, however, divided about essential homicide. Where this is
concerned, it would appear that the opinion of those who even regard essential
homicide as lawful is preferable. If essential violence is indeed lawful – as it
appears to be – then it is not clear to me why that principle should be deviated
from in the case of essential homicide. The objection, guided by understandable
human considerations against the disproportion between property and life, does
not seem to be legally convincing to me as a general ground for exclusion of
liability. De Wet and Swanepoel, S.A. Strafreg p. 70, state that it is not defensible
to weigh up the value of the protected interest and the value of the attacked
interest against each other when it comes to self-defence. I feel that it must be
conceded that such balancing is not acceptable as an ongoing standard. In so
far as self-defence in general is concerned, the interests of the threatened and
the assaulted person are often not the same or proportionate. A smack can
admittedly not justify homicide without further ado, but the warding off of a serious
but not life-threatening scar, for example, which can happen, could hardly be
weighed up against the life of the attacker; and how do you measure the honour
or physical integrity of a woman who is raped against the life of her rapist?
Proportionate retribution is unsuitable as a fixed basis for self-defence. The
attacker of another right who so obstinately disregards the entitled person’s
forbiddance, warning and resistance that he can only be deterred by the ultimate
act, can with good reason be regarded as the actual master of his own demise.
He is the one who acts outside the legal order and if he wishes to defy death by
violating the rights of another, why should the defender who undeniably is lawfully
allowed to defend his right, be seen as violator of the law if he would rather kill
than give up his right? The person caught red-handed who has no designs on
violence himself, will in most cases immediately disappear; and the knowledge
that he cannot be killed without punishment would certainly not contribute to
restrain a determined violator of someone else’s right from committing his
atrocity. I would, for these reasons, and given the support for it that we find in our
common law, feel that it is wrong to say, as stated in R v Schultz 1942 OPD 56,

7
 that homicide can never be lawful to prevent theft as such. … From the nature of
self-defence, it does not as a matter of course mean that the defender of property
can indiscriminately go to the extreme. He will still fall under the restraint of
inculpata tutela, the provisions of protection free from blame, and he can only kill
if it is absolutely necessary.
[2] …The presented case differs from the usual case only in that with the deed of
defence, in other words, the cocking of a firearm was not an immediate
threatening danger that would ward off a defender. As I will illustrate in more
detail later, there was a real threat of damage, which Van Wyk could expect with
a degree of certainty from the burglars, and that he could not prevent other than
being in absentia. The firearm was cocked for one reason only, namely the
protection of property against a certain, expected shop burglary and theft. In my
opinion, this is essentially a case of self-defence, even though the already-
mentioned factual circumstances that are usually present … were not present in
the case.
[3] The onus of proof to refute self-defence in its usual sense rests with the state (R
v Patel, 1959 (3) SA 121 (AA) at p. 1967 (1) SA p501 i.f.). I would think that this
should also apply to the form of self-defence in the case in question, namely
being self-defence to protect property. The state did not discharge the onus of
proof by showing that a less dangerous and effective measure was available to
Van Wyk that he could reasonably have used to protect his property. I must add
that Van Wyk would also not have expected that an innocent person could be hit.
Only a burglar inside the shop would fall into such a trap. If the firearm was
intentionally or negligently cocked so that it would fatally hit someone, then he
would, in my opinion, have exceeded the bounds because one would reasonably
expect that the injury would sufficiently deter the burglars from coming back. He
did not intentionally cock the firearm to kill and it was not proven that the higher
shot can be attributed to his negligence. I would not like to find that it would have
been equally effective to load the firearm only with gunpowder and aim it in such
a way that it would not hit anyone. A person could bleed to death from a leg
wound, but if such an injury with this possibility was the least available measure
to stop the burglaries, as it would appear without proof to the contrary, then Van
Wyk had the right to create that danger for the burglars. However, he did not
have the right to do this without warning. If he had been in the shop himself, he
could not merely shoot without further ado. Where immediate danger to body or
life, as was the case here, was ruled out he should at least have given a warning
first and try to ward off the thief with less violence. This kind of attempt was
obviously impossible in this case, but there is no reason to exclude the required
warning. It is doubtful whether the warning was sufficient in the case under
discussion. It was in a vernacular which a black man would probably not be able
to read or understand; and it only appeared on the door and the light was not
very good. On the other hand, there is evidence that the potential burglars may
have read it that night and decided not to break in, that David Moyo, who was
well-known to the police, could read Afrikaans and that the notice was removed
from the door that night. This was probably done, for whatever reason, after one
of those present, possibly David himself, recognised the notice as such. This

8
 evidence is also referred to in the judgment and was not rejected. Added to this
is the probability that the existence of the notice would have become known
among the gangs involved. The possibility that David did know about the notice
was not refuted and cannot be ruled out as a reasonable possibility; and if he
had known about it, then this requirement is met.
[4] …It would seem to me that it was not proven that Van Wyk exceeded the bounds
that are legally permissible when he protected his property, and I can therefore
not find that the trial court’s conclusion in these particular circumstances is
wrong.
[5] I would, however, like to make it clear that one should not conclude from this
judgment that firearms can freely be used for the protection of one’s property.
Whether it is lawful will depend on the circumstances of each case.
[6] The answer to the first question submitted by the Minister is that:
[7] depending on the circumstances, it is lawful to kill or hurt another person by
means of self-defence in order to protect your property. The answer to the
second question is that the state in the case under discussion, S v Van Wyk, did
not prove that the bounds of self-defence were exceeded.

9
Goliath 1972 (3) SA 1 (A)
[1] ...At the request of the prosecutor certain legal questions in terms of section 366
of Act 56 of 1955 were reserved by this court for consideration and posed as
follows by the trial judge:
‘1. Whether the trial Court correctly came to the conclusion
(a) that the circumstances of the present case were such as to constitute
the defence of compulsion in law; and/or
(b) that in the circumstances of the present case the compulsion was
such as to justify the acts of the accused.
2. Whether the special defence of compulsion can ever in law constitute a
complete defence to a charge of murder so as to entitle an accused to an
acquittal.’ ...
[2] ...What is essentially being asked in the reserved questions (by changing the
order), is whether compulsion can constitute a defence in law on a charge of
murder, and whether a defence of compulsion can reasonably be based on the
facts that were found as proved by the court. In this context, I am not reading the
word ‘justify’ in question 1(b) in a narrow sense, as if the question posed or the
conduct of accused 2 in the case under discussion could be regarded as lawful,
but in another sense, namely whether the compulsion was of such nature and
force that the trial court was justified to find that the compulsion could be
regarded as a defence.
[3] In our legal system, a distinction is made between self-defence and necessity as
grounds for justification from criminal liability. In self-defence a person acts to
fend off an unlawful attack on his rights by another person. In necessity a person
infringes on the rights of another person under coercion of circumstances
exercised by forces of nature or another person. ...
[4] ...For the purposes of this case it is not necessary to discuss all these problems.
It would, however, be helpful to pause at the question if in a case, such as the
one under discussion, a threat to one’s life where a person takes the life of a
fellow human being negates the unlawfulness of an act or should it be regarded
as a ground of justification from criminal liability. When asking the question
whether an act is unlawful, the act is looked at from the outside and judged on
whether it was justified or not according to positive law, whereas with the
question of culpability the act is looked at from the inside, in other words, from
the psyche of the principal offender. With absolute compulsion, whether physical
or psychological, there is no act and what should be judged is therefore relative
compulsion, in other words, the threatened person could have resisted the
compulsion if he wanted to, but only by sacrificing his own life. A relatively
general view appears to be that in a case such as this, the question that needs
to be answered is whether or not the threatened person in these particular
circumstances should reasonably have offered resistance. If a system of law
does not expect the threatened person to resist in these circumstances, his act
under compulsion would be lawful and therefore justified. There are others who

10
 feel that in such cases the unlawfulness is not negated but the culpability is. That
necessity negates the unlawfulness of an act, is accepted in this country by De
Wet and Swanepoel, Die Suid-Afrikaanse Strafreg, 2nd ed. p. 72, and Burchell
and Hunt, South African Criminal Law and Procedure, vol. 1 p. 283. Whatever
the approach may be, it must be put on record that when judging what the
accused should have or should not have done under certain circumstances, the
fictional normal person should be placed in the position of the accused subjected
to the external circumstances that the accused was exposed to and also the
position in which the accused physically found himself. The position of a normal
adult would therefore require a different approach to that of a normal child and
the approach with regard to a normal physically fit person would also be different
compared to a normal physically ill person. ...
[5] ...It is noteworthy that in all the important countries of the continent, the problem
Anglo-American jurists still seem to struggle with was resolved relatively long ago
by a provision that exclusion from punishment is found with regard to each
punishable fact committed under compulsion or necessity. Criminal jurists still
seem to differ in their opinions that the wrongfulness of the act or the liability is
excluded but no longer cling to the idea that murder or high treason should be
the exception to the rule. It is apparently accepted that the law does not
necessarily wish to enforce the highest ethical requirements, and that where the
law is concerned it is felt that the normal human being’s life under deadly threat
is more important than the life of another person. In each concrete case interests
should be weighed up and it can happen that the law and the highest
requirements of ethics do not always agree. ...
[6] In so far as our own law is concerned, seen against its historical background, it
should firstly be stated that the concept of necessity implicated a conflict in each
case in which conflicting interests clash with each other, and where it has to be
decided if certain interests should give way for others. A conflict can arise
between the individual’s own interests and a duty that is contained in a statute,
for example, hunger and theft of food, and between a duty contained in a statute
and a duty arising from other interests, for example, a doctor who is summonsed
as a witness and who does not appear because he came on an accident where
he had to attempt to save a life. The court naturally has to weigh up the interests
that were served by the commission of the act and the interests that are violated
by the commission of the act according to the concrete facts that were proven.
Secondly, it should be emphasised that the problems that characterise the
concept of necessity, arise from a variety of similar cases that can be grouped
together. Therefore, the complexity of the facts of each case should be carefully
judged because each fact of a case can create its own particular ethical and
juridical problems. Owing to the large variety of facts it is apparently unwise to
attempt to create a general and comprehensive principle or formula that could
be applicable to necessity as a ground for negation of punishment.
[7] In the case concerned, this court has to deal with a specific form of necessity,
namely compulsion and in fact compulsion by means of an immediate death
threat whereby the threatened person is forced to help the offender to kill the
deceased. According to the remarks by the said authors that appear in the above

11
 decided case, the defence of compulsion as a complete defence would not be
accepted because the charge against the threatened person was a murder
charge. The view taken seems to be that compulsion can in certain
circumstances be applied as a complete defence with regard to all crimes with
the exception of the most serious one, in particular murder. The question is
whether this absolute rule, that is being suggested, can in fact be regarded as
valid. In so far as compulsion in general is concerned in criminal law, it is
eminently a phenomenon whereby an offender influences the exercising of free
will of the threatened person in such a way that the threatened person becomes
an instrument of the offender psychologically even though reluctantly. That is
why in the olden days, compulsion in general was regarded as mitigation of
punishment cf. Matthaeus, De Criminibus ad D. 48.18, par. 14 mentioned by
Tiraquellus and Menochius. This view can be traced back to Aristotle’s (Ethics,
book 3) analysis of voluntary acts, as already stated above (see Matthaeus,
Prolegomena, 1.3 as well as Voet, 4.2.1). ...
[8] When voicing the opinion that in our law a defence of compulsion is recognised
for all crimes except murder, and that recognition is based on the grounds of the
acceptance that negation of punishment takes place because the person being
threatened no longer has a free will, it appears to me, as a result of development
that has taken place since the days of the old authors in the Netherlands and
England and the finding in the Hercules case, that it would be irrational to exclude
compulsion as a complete defence against murder if the threatened person finds
himself under such strong compulsion that a reasonable person under that
compulsion would not have acted differently. The only grounds for such exclusion
would then be, notwithstanding that the person threatened no longer has a free
will, that the act nevertheless has to be attributed to him because he does not
meet what is described as the highest ethical requirement.
[9] In the application of our criminal law, in cases where the act of an accused is
judged according to objective standards, the principle applies that the accused
should never be subjected to higher demands than those that are reasonable
and in this regard reasonable means what can be expected from the ordinary
average person in these particular circumstances. It is generally accepted, by
ethicists as well, that for the ordinary person in general, his life is more important
than the life of another person. Only someone who is blessed with a quality of
heroism will deliberately offer his life for another person. Should criminal law
therefore stipulate that compulsion could never be used as defence against a
charge of murder it would require that a person who kills another person under
compulsion, notwithstanding the circumstances, should have complied with a
higher requirement than that demanded from an average person? Such
exception to the general principle that is applied in criminal law does not seem
justified to me. In so far as compulsion in our law is concerned, the following
excerpt from the article by Prof. Hazewinkel-Suringa, at cit. p. 195 following on
4.2.6. would not be out of place:
‘Gaat het om lijf of leven, om eerbaarheid en vrijheid, dan behoeft een
gewoon, behoorlijk mens geen weerstand meer te bieden. Heroïsme mag
niet verlangd worden. En heldenmoed is niet het beheersen der hevige

12
 gemoedsaandoeningen, maar het welbewust op die achtergrond plaatsen
van eigen bestaan ten gerieve van dat van een ander. Dit moge eis der
zedelijkheid zijn, niet van het recht.’
(‘When it comes to body or life, to honour and freedom, then a normal,
decent person no longer has to offer resistance. Heroism may not be
required. And heroism is not the control of severe emotions, but the
deliberate placing of their own existence in that background for the benefit
of that of another. This may be the demand of morality, not of right.’)
[10] Whether or not an acquittal can be granted on the grounds of compulsion for a
murder charge will depend on the particular circumstances of each case and all
the facts of the case will have to be carefully examined and judged with the
greatest circumspection. In the mere case where A kills B only to save his own
life, the degree of compulsion would be a determining factor and the compulsion
would have to be so strong, although it is not a vis absoluta, that it can
nevertheless be compared to it in the sense that the reasonable person would
not be able to resist it in those particular circumstances cf. R. v Mtetwa, 1921
T.P.D. 227 on pp. 229-230, and R. v Garnsworthy, 1923 W.L.D. 17.
[11] In order to answer the questions reserved it is not necessary to establish in which
light the negation of punishment owing to compulsion should be seen, namely
whether it is due to the lawfulness of the act under compulsion or due to the
negation of the complete guilt. ...
[12] ... ... Since during the trial the possibility of escape of accused 2 after the threat
was in fact investigated, I think the second interpretation is the correct one and
that by implication the trial court accepted that the state did not prove that it was
reasonably possible for the accused 2 to avoid this threat by accused 1. On this
basis, it cannot be said that the trial court could not reasonably find that the form
of the threat in the case concerned was so severe that it could not be resisted by
a normal person in the circumstances in which the appellant found himself.
[13] Owing to the considerations stated above, I am of the opinion that the second
legal question that was posed, must be answered with a qualified ‘Yes’ in the
sense that a complete defence will depend on the circumstances of each case.
Both parts of question 1 should be answered with ‘Yes’.
[14] OGILVIE THOMPSON, C.J., JANSEN, A.J., and TROLLIP, A.J., agreed with
RUMPFF, A.J. ...
WESSELS A.J.
[15] ...In my opinion the questions reserved should be answered as follows:
1. According to prevailing law compulsion is not accepted as a ground of
justification where an innocent person is murdered.
2. The question whether the factual findings in the case concerned justified
the participation of accused no. 2 in the murder of the deceased, therefore
falls away.

13
3. The answer to the question whether compulsion according to prevailing law
could ever serve as ground of justification would depend on:
(a) whether the compulsion was of such nature and extent that the
intention of the offender in the circumstances as a result of the
absence of a blameworthy disposition, is totally excusable, in which
case he would guilty of neither murder nor culpable homicide.
(b) whether the compulsion was of such nature and extent that the
offender, in the circumstances, is excusable to a degree, but not
totally, in which case he would be guilty of culpable homicide.

14
Chretien 1981 (1) SA 1097 (A)
[1] In 1979 (4) SA 871 (D) a judgment was handed down in a criminal case under
the name of S v Chretien. The state was not satisfied with the judgment when it
was delivered and applied for a question of law to be reserved which was then
granted in the following words:
‘That the following question of law is reserved in terms of s 319 of the
Criminal Procedure Act 51 of 1977 for decision by the Appellate Division:
Whether on the facts found proven by the Court the learned Judge was
correct in law in holding that the accused on a charge of attempted murder
could not be convicted of common assault where the necessary intention
for the offence charged had been influenced by the voluntary consumption
of alcohol.’
[2] It appears that the respondent was charged with murder (one charge) and
attempted murder (five charges), and he was also charged with certain
contraventions of traffic regulations. On the one charge of murder the respondent
was found guilty of culpable homicide. On the five charges of attempted murder
he was found not guilty. The alleged traffic offences are not important. From the
judgment of the trial court it appears that the respondent, after a party, and while
he was under the influence of alcohol, drove a Volkswagen Kombi into a group
of people who were also at the party and standing in the street in front of the
house. One person was killed and five were injured. What gave rise to this event
has already been described in the reported judgment and it is not necessary to
repeat this here. The trial court rejected an argument that the respondent acted
out of sheer necessity. It was also found that it was not proven that the
respondent drove into the group intentionally. The trial court accepted that the
respondent was not under the influence of alcohol to the degree that he did not
realise the consequences of his actions. Nevertheless, the trial court accepted
that the respondent’s explanation that he expected that the people in the street
would get out the way could not be rejected. The problem of the trial court was
described as follows in the judgment:
‘A doubt does exist in our minds as to whether or not the accused is in fact
being truthful when he says he believed that the crowd would disperse, and,
whatever may have been the position in the case of a sober person, having
regard to the state of the accused’s intoxication, he may have believed
something which no sober person would have believed. The accused is
entitled to the benefit of this doubt. Whilst therefore there is no doubt that
the accused acted in a grossly reckless manner in his driving, we cannot
say that what he did was done deliberately. This being so it seems to us that
on the main count the accused falls to be convicted of the crime of culpable
homicide.’
[3] The trial court then found that with regard to the five charges of attempted murder
there was no intention and that the respondent could also not be found guilty of
assault, notwithstanding the findings of this court in S v Johnson 1969 (1) SA 201
(A).

15
[4] In this court it was argued on behalf of the state that the trial court erred by finding
the respondent guilty on five charges of attempted murder and that the trial court
was bound by the ruling of this court in S v Johnson (supra). It was furthermore
argued on behalf of the state that the respondent should have been found guilty
on the five charges of common assault. This argument cannot succeed. This
court must proceed from the point of view (as essentially found by the trial court),
that the respondent, in his alcohol-induced haze, expected that the people would
have seen his Kombi coming and gotten out of its way. Therefore, he had no
intention of driving into them and also did not threaten to drive into them. He
simply expected them to disperse. Even common assault calls for the intention
to assault and if such intention does not exist (or cannot be proven), there can
be no conviction of common assault.
[5] Since the state expressly and directly cited the Johnson case supra, in which it
was ruled that drunkenness, except if it can lead to a form of insanity, cannot
serve as a defence, it is recommended that the judgment in that case should be
reviewed. The ruling, which is legally incorrect, creates problems because a clear
juridical and logical approach to the problem is not acceptable to a certain part
of the community. The community in the olden days was subject to alcohol abuse
by certain members of that community. This abuse did not become less and
today it is often accompanied by drug abuse. Since so many cases of assault
and so much death are caused by people under the influence of alcohol, part of
the old community became sceptical about the ‘lenient’ treatment of drunks and
the view was taken that drunkenness can never be a defence except in cases
where it leads to a form of insanity. This is the reason why the court, after
studying some of our old authors and the rulings by our courts in the Johnson
case, did not want to dispense with the old approach and came to the following
conclusion at 212:
‘The rule in our law that drunkenness cannot be used as defence against
a crime committed owing to drunkenness is therefore not out of context
with regard to the requirements for criminal liability but has been adapted
accordingly. Consequently, there are no valid reasons why we should
deviate from a rule that has long since been established in our law.’
[6] The view that people should be punished for crimes they commit while being
drunk, no matter how drunk, is generally a problem in Western countries, for
example cf. “Strafbaarheid van Beschonkenen” by Langemeyer in Tijdschrift van
Strafrecht part XLVII (afl 4) at 341; Hazewinkel-Suringa Inleiding tot de Studie
van het Nederlandse Strafrecht 7th ed. at 248, and also at 249, where the legal
position in the different European countries is summed up; Smith and Hogan
Criminal Law 4th ed. at 184, which specifically mentions the English problem and,
among others, explain that the following crimes do not require ‘specific intent’:
“rape; maliciously wounding or inflicting grievous bodily harm; ... indecent
assault; common assault”. Where our law is concerned, the whole idea of
‘specific intent’ with regard to alcohol as it appears in English law should be
regarded as unacceptable. There is no place for this particular approach in the
proper application of our law. Naturally according to our law a court can find that
a person while under the influence of alcohol did not foresee a certain

16
 consequence that he would have foreseen if he had been sober, and that he was
therefore guilty of a less serious crime.
[7] In order to determine what the position should be in criminal law in the case of
an accused who under the influence of alcohol commits an act of omission, I
think, it is necessary to begin with the degree of drunkenness. And then I would
solely deal with ordinary voluntary drunkenness ...
[8] If one begins with someone who is described as being ‘blind drunk’ it is actually
also a question of the degree of drunkenness. Is he so drunk that he is ‘paralytic’
and just lying around somewhere while making involuntary jerking muscle
movements with his arm or foot and if someone were to be hurt by these
movements, there would in any case be no question of an act? Similar to the
body movements of a sleepwalker, there would be no question of an act. In
criminal law, an act is only an act when it is controlled by the mind. In case of the
involuntary muscle movement of a paralytic drunk there is not the slightest sign
of control and therefore it is not necessary to philosophise about guilt. Criminal
responsibility also does not come into play here. That is the one side of the
spectrum. On the other hand, it would be a case of where an accused drank a
negligible amount of alcohol that had no effect worth mentioning on his mental
faculties. In between, we find a vast number of cases in which acts took place
under the influence of alcohol, acts that apparently indicated the reaching of a
goal or consequence, but where the question arises to which degree the drunk
realises the seriousness of what he is doing and to which degree his inhibitions
were impeded. Someone can be described as ‘very drunk’ but still act seemingly
rationally. He may even forget what he has done but his mind did in fact control
his act, even though his inhibitions were badly diminished by alcohol. This is
where criminal responsibility does come into play. ...
[9] ...In my opinion it is preferable to accept that, if it is shown from the evidence that
an accused was actually so drunk that he really did not realise what he has done,
public policy (the sense of justice of the community) does not require that the
approach of jurisprudence should be dispensed with and that the accused should
be punished merely because he voluntarily reached a condition in which he
legally cannot act or is not criminally responsible. The case of an accused who
drank in order to commit a crime, is not up for discussion here. For the purposes
of this case, it is also unnecessary to discuss the question whether drunkenness
or the influence of other drugs that give rise to unlawful acts, should be
punishable by legislation.
[10] The problem lies not so much in the principle that should be applied but in the
manner in which that principle is applied. If a court readily or easily accepts that
an intoxicated person who, for example, rapes or attempts to rape a woman is
not aware of what he is doing and therefore not criminally responsible, and
allowed to go free, the jurisprudence would soon be discredited. Diminished
criminal responsibility and less punishment is obviously another matter. In De
Wet and Swanepoel’s Criminal Law, 3rd ed. at 119 a footnote in this regard refers
to Hall, General Principles of Criminal Law at 534 where the distinction is made
as follows:

17
 ‘In the cases relevant to the present problem, the defendant is in a state of
intoxication between these extremes. What he has to deal with is not
incapacity to perform simple acts or such an obliteration of cognitive
functions as to exclude any degree of purposive conduct, but instead a
severe blunting of the capacity to understand the moral quality of the act in
issue, combined with a drastic lapse of inhibition. As has been suggested,
this closely resembles, if it is not identical with, insanity.’
[11] In my opinion and where our law is concerned this should be formulated
somewhat stronger. Only when a person who has committed a consequence
crime is so intoxicated that he does not realise that what he is doing is unlawful,
or that his inhibitions have essentially crumbled, can he be regarded as not
criminally responsible. If there is reasonable doubt, the accused should be given
the benefit of the doubt. I would not like to answer the question whether the onus
of proof should not be changed without argument.
[12] When going through court reports, it appears that only in highly exceptional cases
is it found that an accused commits a crime while he so intoxicated that he does
not realise that what is doing is unlawful or that he has totally lost his inhibitions.
In many cases it was found that alcohol did not diminish the judgment of the
accused, in other cases it was found that alcohol caused that a certain
consequence could not be foreseen (e.g. the assault, the death of the deceased)
and in certain cases, where notwithstanding the influence of alcohol the
consequence could be foreseen, such, as for example in the case of murder,
mitigating circumstances were in fact found. There is therefore in my opinion, no
objection on the grounds of public policy, to deviate from the approach that was
followed in the Johnson case. In my opinion, someone who is paralytic and
unaware of what he is doing, is not responsible because a muscle movement in
this condition is not a criminal act. If someone commits an act (more than an
involuntary muscle movement) but is so drunk that he does not realise what he
is doing or that he does not understand the unlawfulness of his act, he is not
criminally responsible. But I would like to repeat that a court would only come to
the conclusion on the basis of evidence which justifies it, or where there is
reasonable doubt, that when someone has committed an act (or omission) which
is a crime, he was drunk to such a degree that he was not criminally responsible.
[13] ...One of the problems in connection with acts committed while being intoxicated
is obviously that the drunkard did in fact know what he was doing while he did it,
but often forgets what he has done. The mere fact that he has forgotten what he
did does not mean he is not criminally responsible. It is, however, clear that in
each case careful attention is given to all the relevant facts. A court has to do this
because it is ultimately the duty of the court itself to decide whether or not an
accused is criminally responsible.
[14] Insofar as the case under discussion is concerned, the stated legal question must
be answered in the affirmative.
[15] JANSEN AJ, MILLER AJ, JOUBERT AJ and VAN HEERDEN A AJ agreed.

18
De Blom 1977 (3) SA 513 (A)
[1] ...In this regard it was also argued on behalf of the appellants that an onus of
proof rests on the state to prove that the appellants had the necessary mens rea
and that the state did not discharge the onus of proof, alternatively, if an onus of
proof rests on appellants she did acquit herself of it.
[2] It is recommended in the first place that the question of mens rea should briefly
be discussed. In our law, the expression mens rea is used to indicate dolus or
culpa, see among others S v Qumbella 1966 (4) SA 356 (AA), and S v Oberholzer
1971 (4) SA 602 (AA). In the latter case this court reaffirmed that in our law the
general rule that actus non facit reum nisi mens sit rea applies and that with the
interpretation of a penalty clause it is presumed that the legislator, in the absence
of clear indications to the contrary, did not intend to threaten innocent
contraventions thereof with punishment. ...
[3] At this stage in the development of our law it must be accepted that the cliché
that “every person is presumed to know the law” does not have any grounds for
existence and the view that “ignorance of the law is no excuse” can legally not
be applicable in light of the present-day concept of guilt in our law. ...
[4] In so far as legal ignorance or error of law is concerned, the following is said in
Strafreg of De Wet and Swanepoel, 3rd ed. on p. 140, among others:
‘I agree with the view that awareness of unlawfulness is elementum
essentiale of intent. One only acts dolo malo when one intentionally violates
the legal order. This does not mean that the offender should know that he
has contravened section W of Act X of 19YZ, or that the offender must know
that what he intends to do is punishable by various types of punishment,
but merely that he should be aware that what he wants to do is unlawful.
This does also not mean that the offender must be sure that what he intends
to do is against the law, but merely that he has made the presumption that
what he intends doing could be unlawful, and that he has reconciled himself
with this possibility.’
And further:
‘Against this standpoint it can be maintained that ignorance of the law or
error of law will still exclude intent. This is also true. The point is, however,
that one cannot blame the offender for acting intentionally, unless he was
also aware of the unlawfulness of his conduct. With crimes where intention
is required, legal ignorance and error of law should still be grounds for
excuse, because dolus or intent is missing, unless the error is substantial.
This seems to be a fairer and clearer approach to follow than the grotesque
approach that everyone is deemed to know the law. This latter fiction has
never been a truth, and this is still the case today. To maintain that abiding
by the law is impossible without the already-avenged fiction is also wrong.’
In an article entitled ‘‘Wederregtelikheidsbewussyn by Strafregtelike
Aanspreeklikheid″, on p. 271 of the Tydskrif vir Hedendaagse Romeins-
Hollandse Reg (T.K.R.K.R.), volume 30, 1967, Prof. van der Vyver comes to the

19
 conclusion with regard to awareness of unlawfulness in criminal law that no
distinction should be made between an error of law and an error of fact...
[5] In this regard we can also refer to a discussion of the decision in S v Ntuli 1975
(1) SA 429 (AA), by the same author in the T.H.R.H.R., 1975, p. 406. In a doctoral
dissertation entitled: “Wederregtelikheidsbewussyn in die Strafreg” (Pretoria
University, 1973) D.A. Botha undertook an historical and legally comparative
investigation into what is named in the title. On p. 331 he correctly states the
position as follows:
‘There are indications in the South African jurisprudence of an increasing
awareness that the offender cannot be blamed or found guilty unless
awareness of unlawfulness has played a role in one of the following two
ways:
(a) for dolus, the offender is required to have acted with awareness of
unlawfulness; as a free, responsible member of society he deserves
to be blamed because he was aware of the unlawfulness of his
intended act and consequently he could have refrained from
committing it;
(b) for culpa, it is required that the offender could and must have been
aware of the unlawfulness of his behaviour; as a free, responsible
member of society he deserves to be blamed because with the
exercising of the requirement he could and should have foreseen that
his behaviour would be unlawful, and consequently he could have
prevented or avoided it. The determination of guilt by the application
of these standards reflects the role played by awareness of
unlawfulness in criminal law.’
In the T.H.R.H.R., volume 38, 1975, on p. 41, there is a short article by the same
author about “Verwytbare Regsonkunde en die Skuldsoort Culpa”. The judgment
of this court is discussed in S v Tsochlas 1974 (1) SA 565, and there is also a
reference to S v Wandrag 1970 (3) SA 151 (O). In the Tsochlas case, this court,
among others, ruled on p. 573:
‘The learned trial judge held that, although delivery and payments were to
take place beyond the borders, there was an agreement of sale of uncut
diamonds in this country; that that was a contravention of the statute; that
mens rea had to be proved by the State; and that this existed as culpa since
the appellant knew that uncut diamonds could not be bought in this country
without a permit, and he had no permit, and he should have shown more
circumspection before entering into the agreement which he did.’
The conviction was upheld. On p. 50 of the T.H.R.H.R., volume 38, the author
describes the position as follows:
‘In our jurisprudence there are now at least two guidelines for the
determination of culpa with regard to the lawfulness of the offender’s
conduct. In Wandrag, the court found that it could reasonably be expected
from an employer in the building industry to keep himself informed about the

20
 legal rules with regard to the employment of workers in the building industry.
If he fails to do this, his ignorance of the law could consequently lead to him
being blamed for negligence. The same apparently applies to a person in a
modern state, in which many facets of that legal subject’s comings and
goings are controlled by legal rules when he embarks on something in a
particular field. The owner of a garage can reasonably be expected to be
familiar with the legislation that is applicable to his field, and the angler can
certainly be expected to know what the angling rules permit and prohibit. A
person who wishes to do a transaction in diamonds en who knows that the
diamond industry is strictly controlled by legislation can be rightfully blamed,
as in Tsochlas, if he fails to get legal advice and consequently acts
unlawfully.’
I think that this approach can be supported. In the case under discussion there
is, in my opinion, no indication that the charges against the appellants should be
approached from a standpoint that absolute liability is envisaged by reg. 22. In
the interpretation of a statutory description of a crime, unless proof to the
contrary, the legislator did not wish an innocent unlawful action to be punishable
...
[6] In a case such as the one under discussion, it must be accepted that when the
state submits evidence that a prohibited act has been committed, a deduction
can be made, according to the circumstances, that the accused intentionally (that
is, also with awareness of unlawfulness) committed the act. If the accused wishes
to rely on a defence, such as in the case under discussion, that she did not realise
that her act was unlawful, her defence can succeed if from the evidence as a
whole it can be concluded that a reasonable possibility exists that she did not
know that her act was unlawful; and furthermore, when only culpa and not dolus
alone are required as mens rea, a reasonable possibility exists that she could
not be blamed juridically, that is, taking all the circumstances into consideration,
it is reasonably possible that she acted with the necessary circumspection to
inform her what is expected of her with regard to the question whether permission
to take money out of the country is necessary or not. Should there on the
evidence as a whole, that is, including the evidence that the act was committed,
be reasonable doubt or that mens rea in the sense as described above did exist
where the accused was concerned, the state would not have been able to prove
its case without reasonable doubt.
[7] In so far as the facts of the case under discussion are concerned, it is in my
opinion clear that where the money is concerned, the appellants knew that she
needed permission to take the money out of the country and that this permission
was not obtained ...
[8] The appeal succeeded in so far as reg. 10(1)(b) is concerned and the conviction
and sentence was set aside. The appeal was dismissed in so far as the
conviction in terms of reg. 3(1)(a) is concerned.
[9] JANSEN, A.J., RABIE, A.J., MULLER, A.J. and JOUBERT, A.A.J., agreed.

21