CHAPTER 11

TUTORIAL

QUESTION 1
SET OF FACTS:
A, a motorist, enters an intersection as the traffic light turns red. He collides with
another motorist who dies in the car accident.

Answer the following questions:

1.1 What is the difference between murder and culpable homicide?

1.2 May the accused be charged for culpable homicide and then be found guilty of murder?
Refer in your answer to case law if relevant.
1.3 Give the test for a culpa.
1.4 If the accused had a below average IQ which affects the exercise of discretion, would
that have negated the negligence of the accused?
1.5 May the family of the deceased institute a civil claim against the accused?
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QUESTION 2
SET OF FACTS

YOU ARE THE PROSECUTOR.

You charge the accused, a 22 year old female for the following crimes:
Count 1: Attempted murder of her newly-born child;
Count 2: Attempt to commit the statutory offence of abortion;
Count 3: Commission of the statutory offence, abortion; and
Count 4: Murder of her newly-born child.

Answer the following questions with reference to the given set of facts:
2.1 Section 12(2)(a) of the Constitution provides for the right to make decisions concerning
reproduction and 12(2)(b) of the Constitution for the right to security in and control over
their body” whereas section 27(1)(a) of the Constitution provides for access to health
services which includes reproductive health care.

The presiding officer asks you to address the court very briefly on why the accused is charged
for conduct that concerns her own body. (1)

2.2. Briefly explain the correctness of the following statement (supposition): It may be argued
that the decriminalisation of abortion subject to legislative provisions is an example of
decolonization. (2)

2.3 The defence objects against the multiple charges. You must address the court on the
justifiability of the objection to the multiple charges. (4)
[Instructions: You must refer to 4 facts.]

2.4 Section 239 of the Criminal Procedure Act 51 of 1977 provides:

(1) At criminal proceedings at which an accused is charged with the killing of a newly-
born child, such child shall be deemed to have been born alive if the child is proved to have
breathed, whether or not the child had an independent circulation, and it shall not be necessary
to prove that such child was, at the time of its death, entirely separated from the body of its
mother.

The defence argues that the accused cannot be charged with murder or if charged, not convicted
of murder as the child was a still-born. A doctor explains the J88 whereupon you address the
court on the evidence that indicates that the newly-born child was alive. (3)

2.5 The defence indicates that the accused is prepared to plead guilty to facts similar to that
of R v Davies 1956 (3) SA 52 (A).

Explain very briefly the relevance of this case with reference to the facts and conviction in the
Davies case. (2)
2.6 In 2022 the 1973 US landmark decision, Roe v Wade, which legalized abortion, was
overturned. The Supreme Court found that the Constitution on federal level did not
provide for abortion. This means that each state in the US can now decide whether the
state will allow abortion or criminalise abortion. Can a similar situation present itself in
South Africa resulting in the Abortion Act being declared unconstitutional? (4)

2.7 Motivate briefly whether the date of the commission of murder is relevant. (3)
[Instructions: You must refer to 3 facts which must include a statutory section.]
QUESTION 3
SET OF FACTS:
Hartmann was a medical practitioner practising in Ceres. His 87 year old father had
been suffering for a number of years from a carcinoma of the prostrate and his
condition had spread to other parts of his body with secondary cancer manifested in
his bones and his ribs. He had been treated elsewhere in the country but had come
to Ceres for treatment as a private patient of his son at the local hospital. With no
cure possible, Mr Hartmann senior’s treatment was symptomatic. By the time he was
hospitalised in Ceres he was completely bedridden, extremely emaciated, incontinent
and suffering great pain. He was put on intravenous food because he could not
swallow without choking. Within a short time, he was in a critical state, declining, close
to death, and suffering great pain which was treated through morphine administered
via a drip. The general picture of Mr Hartmann senior was of a patient in extreme
misery due to bodily wasting and entirely dependent on his attendants for his simplest
needs. The evidence presented strongly suggested that his quality of life had become
meaningless. There was no dispute that Dr Hartmann was motivated in his actions
solely by what he considered to be the best interests of his father. Dr Hartmann had
instructed a nursing sister to give his father half a gram of morphine which she had
reluctantly done. An hour later Dr Hartmann himself administered a further half a
gram of morphine through his father’s drip and about one and a half hours later
injected a lethal dose of Pentothal into the drip. Within seconds Mr Hartmann senior
died. The uncontroverted medical evidence was that the immediate cause of Mr
Hartmann senior’s death was the administration of the Pentothal.

Dr Hartman is charged for murder. His defence is physician assisted euthanasia. Discuss.
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