Question 1

Albert awakes in the middle of the night and hears footsteps in the garden outside his
bedroom window. His house has recently been broken into and his wife attacked.
Suspecting that this might happen again, he has built a six foot wall around his property and
kept the gate locked.

After hearing the footsteps he picks up a loaded gun that lies next to his bed and fires a shot
through the metal burglar bars of the open window at a figure in the dark outside his
bedroom. The intruder is struck in the thigh by the bullet discharged from Albert's gun. It
transpires that the person struck by the bullet is Albert's neighbour, who had tried
unsuccessfully to reach Albert on the telephone in order to help him (the neighbour) get his
sick son to hospital. The neighbour eventually climbed over Albert's wall to seek help as he
knew Albert was at home.

Albert rushes his neighbour, who has lost a lot of blood from the bullet wound, and the
neighbour's son, to a nearby clinic. Although Albert tries to stop the bleeding his neighbour,
who is a haemophiliac (a chronic bleeder whose blood does not clot quickly) dies from loss
of blood before he reaches the hospital.

Albert is charged with the murder/culpable homicide of his neighbour. Consider the criminal
liability of Albert on this charge.

Would it make a difference to your answer if the neighbour were not a haemophiliac and
Albert had managed to stop the bleeding but, when the neighbour was operated on by a
young doctor in the clinic, the doctor had severed an artery in removing the bullet and the
neighbour had died from loss of blood during the operation?

ISSUES:
Could A be convicted of murder (define) or culpable homicide (define)?
Elements of private defence of person/property as defence excluding unlawfulness:
Was there an imminent attack?
Legal interest endangered: person or property or both? Justification for defence of property
—Van Wyk (Storekeeper)
Were reasonable means used to avert any attack? Warning shot? Resort to police?
Putative private defence: De Oliveira. The focus is on the genuineness and reasonableness
of A’s belief (ie fault is in issue rather than unlawfulness)
LEGAL PRINCIPLES:
Private defence:
Elements of attack—(i) commenced or imminent attack (Engelbrecht: inevitable, but applies
to domestic abuse and not yet confirmed by SCA); (ii) upon a legal interest (Life, physical
integrity, property); (iii) unlawful attack.
Elements of defence—(i) necessary to avert attack; (ii) reasonable response to attack
(warning shot if possible: Stephen); (iii) directed against attacker.
Objective test ie defence excluding unlawfulness: Reasonableness in the circs. No onus on
accused who must simply raise the defence!
Killing in defence of property alone (mention the elements): AD in Van Wyk—killing in
defence of property may be justified in principle (All five judges of appeal agreed on this
matter but divide 3-2 on whether Van Wyk acted reasonably) NB reasoning of Steyn CJ that
proportionality not required and s 49 (which, at that time, permitted killing of a fleeing
suspect who had committed crime against property…not the case with new s 49).
NB special circs of Van Wyk (compare the Storekeeper DVD)
Constitutional challenge to Van Wyk? Right to life above right to property. Emphasis on
proportionality. Change to s 49 (need for threat to physical integrity). Doubtful whether Van
Wyk would survive a Constitutional challenge.
Putative private defence:
Discuss De Oliveira distinction between pd as a defence excluding unlawfulness and putative
pd as defence excluding fault. Discuss also Dougherty.
Was mistaken belief that A’s property and/or life was in danger genuine? If it was, then this
could exclude knowledge of unlawfulness (ie intention). Why was accused in De Oliveira
convicted of murder and accused in Dougherty convicted of culp? Accused in De Oliveira did
not testify as to his belief and court drew legitimate inferences that he did know of the
unlawfulness of his conduct. In Dougherty court held that prosecution had not proved
beyond reasonable doubt that accused knew his conduct was unlawful (therefore acquitted
of murder) but that his mistaken belief was not reasonable (therefore convicted of culp). He
should have fired a shot to incapacitate before shooting to kill.
If ruling in Van Wyk (that killing in defence of property alone is permissible in extreme circs)
does not withstand a Constitutional challenge then A could still raise ignorance or mistake of
law in terms of De Blom in that he did not know that there had been a change in the law but
his belief would have to be reasonable to exclude culpa.
APPLICATION OF LEGAL PRINCIPLES TO THE FACTS
Private Defence of person: There is no immediate/imminent attack on A’s physical
integrity. B is a homeless man seeking shelter in a garden shed. (‘Inevitable’ attack
(Engelbrecht) confined to gradual build-up of domestic violence and this extension of pd not
yet accepted by SCA).
Private defence of property: Is there a commenced or imminent attack on property.
Trespass is a crime against property and trespass is taking place. Did B take reasonable
means to avert the trespass? Did he fire a warning shot (Stephen)? He did fire two shots, but
both were in the direction of the shed. Not clear whether first shot was a warning shot, but
unlikely if it was fired direction of shed from which noise emanated. Could A have called the
police? He had spoken to police, but they were under-staffed and so not able to patrol area.
But, he could have telephoned them that night to come and investigate. Was A’s
predicament as extreme as Van Wyk’s?
In any event, the Constitutional future of Van Wyk (which regards killing in defence of
property in exceptional circs as a potential defence) is in doubt—right to life is central in
Constitution and s 49 killing now only applies to threat of physical violence not property.
Unlikely on facts and the law that A’s killing of B would be seen as amounting to a situation
of legitimate private defence.
Putative private defence: There is some evidence to show that A genuinely believed his
physical integrity (even life) and property were in danger (NB evidence of previous break-ins
and drive-by killing in neighbourhood). A’s genuinely held belief could serve to exclude
knowledge of unlawfulness for murder, leading to an acquittal on this charge (NB he should
be counselled to give evidence in court to support his genuinely held belief—compare De
Oliveira).
Was his belief that his life and property were in danger reasonably held? Here again issues
of warning shot/resort to police that night might indicate that he acted too hastily and his
belief might be held to be unreasonably held and so A would be negligent regarding the
death of B. In this case A could be convicted of culpable homicide.

More in depth answer

Albert has been charged with the killing of Bennie.

Albert could be charged with either:
 Murder the unlawful and intentional killing of another person
 Culpable homicide: the unlawful and negligent killing of another person

1. Issues

A preliminary general issue relates to defenses excluding unlawfulness  can a person use
force in defense, including deadly force, in defense of one’s property?
More specifically, the issues are:
 Is unlawfulness excluded where a person has acted in private defense and has killed
or wounded someone to defend his property?
 Can unlawfulness be excluded where a person who acts under a reasonable belief
that he could shoot a person in defense of his property [PUTATIVE PRIVATE
DEFENSE]
 If the private or putative defense fails, the 3rd issue to consider is whether Albert was
the legal and factual case of Benny’s death given that he refused medical treatment
and would have recovered (this is assumed) had he received the treatment?
 Did the refusal to allow the operation constitute an actus novus
intervenienes?
 Is this conduct reasonable or unreasonable objectively viewed?

2. Legal Principles

There are two grounds upon which Albert can rely to exclude unlawfulness:
a. Private Defense
b. Putative Private Defense

a. Private Defense
 A private defense can be raised when it was necessary in the situation in which he found
himself and that he used the means appropriate to the danger that confronted him.
There are specific conditions relating to the attack and the defense that must be met for a
successful defense of private defense to be raised.
Conditions relating to the attack
There must be evidence that

(1) There was an attack; commenced or imminent

The attack must have actually begun or must have been imminent upon an interest of the
defender. The defense can only be resorted to in respect of an attack that has already
begun.
(2) Upon a legally protected interest

The interest must be one recognized and protected by law, inter alia: life and limb, property,
other interests, 3rd parties
(3) The attack was unlawful

Conditions relating to the defense

In order for a situation of private defense to arise, there must be evidence that the defense
was
(1) Necessary to avert the attack

Can only be used when it is necessary to do so. The defense is necessary when it is the only
means available at the time.
(2) Reasonable response to the attack

The gravity of the attack and the style and extent of the defense against the attack must be
more or less proportional.
This is expressed in a requirement that the method used to avert the attack was reasonable
in the circumstances.
In the case of R v Stephens it was stated that where a firearm is used to ward off an attack a
WARNING SHOT must be fired.

The use of deadly force to protect an interest

The approach in South Africa is that one can kill or use deadly force in defense of property, BUT only
after taking into account all of the factors, that the defender acted reasonably in the manner in which
he defended his property.
A list of these factors is outlined in Burchell at page 241. They are inter alia: age, gender, size,
strength and persistence of the attack.
The TEST = examine objectively the nature of the attack and the defense to determine whether they
conform (3)to the principles
Directed of law
against theasattacker
above.

3. APPLICATION TO THE FACTS.

Conditions relating to the attack

In the present case, there has been attack. The attack had already begun upon an interest of
Albert.
The interest here was property, and the attack was clearly unlawful as a person has seemed
to enter his property without any express permission in what Albert believed was an
attempt to steal from him.
Conditions relating to defense
There are 3 conditions that must be met:
(1) Necessary to avert the attack

A defense is necessary where it is the only means available at the time for warding off the
attack. The fact that other means of relief are not available does not make the defense
unnecessary if at the time of the attack it was impossible for the defender to obtain that
relief.
Thus, where it is possible to phone the police to obtain relief before resorting to use private
defense it would be reasonable to do so. However, the law is not unreasonable and if that
relief cannot be obtained then private defense can be used.
(2) A reasonable response to the attack

In Van Wyk, it was confirmed that one can use deadly force in private defense of property 1.
However, he may kill only if it necessary to do so. Also the defendant must in any event, if it
is reasonably possible to first issue a warning shot and must limit himself to the least
dangerous response that would be effective.
Trollip AJA in Van Wyk outlines what conditions must be must be satisfied before killing or
seriously injuring another in defense of property can be justified.
Minimum Requirements
(1) Reasonable grounds for a defended to think that because of the offender’s
unlawful act, there was danger of serious damage to or destruction of or loss of the
property
(2) The means used in defending it and resulting in the offender’s death or injury were
not excessive having regard to all of the circumstances, such as the nature and
extent of the danger, the value of the property and the time and place of the
attack.
(3) They were the only means whereby he could avoid the danger.

Albert’s conduct does not meet these requirements. In this case there was an individual in
his garden shed. The shed itself is of little value and it is assumed that the contents
contained in the shed were not of great economic value. Furthermore, Albert was in the
comparative safety of his house behind a set of burglar bars (notwithstanding that they
were rusty and old). Furthermore, Albert had a full view of the area in front of him and
would see if an attacker was moving towards his position.
HIS DEFENSE THERFORE FAILS.
PUTATIVE PRIVATE DEFENSE
The use of putative private defense to exclude unlawfulness was outlined in the case of S v
De Oliveira.

1
Burchell at pg 178.
 S v De Oliveira
In this case it was held that lawfulness is not the issue but culpability. If a defender kills
someone it is unlawful, but if an accused honestly believes that his life or property was in
danger, but objectively viewed they were not, the defensive steps he has taken cannot
constitute a private defense. If in those circumstances he killed someone his conduct was
unlawful. His erroneous belief that his life or property was in danger may well exclude dolus
in which case liability for the person's death based on intention will also be excluded; at
worst for him he could then be convicted of culpable homicide.
S v De Oliveira 1993
In De Oliveira, the Accused, who lived in secure and burglar-proofed house in dangerous area,
awakened from afternoon sleep by presence of men outside house on driveway. The Accused
picked up a pistol, opened window and fired six shots - Two shots struck, one killing deceased, the
other injuring accused's employee - No indication that any attack on the house imminent -
Accused failed to testify - Defense of putative private defense failing and accused
In this case the Court adopted the approach of the REASONABLE MAN TEST2 –would a
reasonable man in the position of the accused have acted in the same way?
In the present case, Albert only knew that there were strangers on the premises. Also aware
that the area was a dangerous one where robberies and house-breaking had occurred.
Appellant however was in a situation of comparative safety behind the burglar bars.
It is not conceivable that he could fire outside or in the direction of a person in defense of
his life or property without first firing a warning shot.
Therefore, there is prima facie proof that the appellant could not have entertained an
honest belief that he was entitled to act in private defense.
CAUSATION
The focus here will not be on the Thembani case as that case focused on negligence.
Novus Actus Interveniens
Thembani  the nature or quality of the wound would normally lead to death. The wound
was mortal or fatal.
THE REFUSAL:
 The deceased had decide to refuse treatment
 Mokgethi case – advised to move position in wheel chair but failed to do so. His
failure to heed that advice was held to be a novus actus.

However, the enquiry will depend on whether it is normal or abnormal to refuse a blood
transfusion.
In terms of the rules of legal causation, the ‘thin skull rule’ states that one takes his victim as
you find him i.e. any pre-existing physical condition cannot be raised as a defense for an
injury or result that follows from an attack.
However if we extend this rule can it also include beliefs?
Ultimately, the enquiry will be an OBJECTIVE DETERMINATION of whether the belief was
REASONABLE or not.

QUESTION 2

2
At page 187 of De Oliveira in Burchell Cases and Materials
H and W have been married for two years. The marriage has been turbulent from the start.
H has a short temper and the couple have had many fierce arguments some of which have
ended in H physically striking W with an open hand or, on occasions, with his fist in her face.
H is possessive about W and constantly checks her cell phone to determine who she has
contacted.

On the night in question, after returning from work, H starts drinking beer as he waits for W
to come home from her work as secretary to a small building company. When W unlocks the
front door and enters the living area, H, who has by now consumed six beers, calls out to
her from the sofa where he is lying:

“Where the hell have you been?”

W replies that she’s been at the staff party.
“So you’ve been with your boss, have you?
“Of course, I have, stupid. How could we have a staff party without him?” she responds. H
stumbles from the sofa and pushes W up against the kitchen counter.
“I’ll teach you a lesson, you bitch,” he shouts, ripping her skirt open, pulling her panties
down and unzipping his trousers.
W leans back, grabs a kitchen knife lying on the counter and plunges the knife into H’s
stomach.
H falls on his back with the knife stuck in his stomach, gasping “Help me!”

W uses her cell phone and contacts the emergency services, telling them where she lives
and that her husband has been stabbed in the stomach. The emergency services indicate
that they will be there immediately, but instruct her not to remove the knife. While she is
giving her details to the emergency services on her cell phone, H is screaming:

“Help me... stop the pain... take the knife out!”

W ends the call, puts her cell phone in her bag, places a dish cloth around the handle of the
knife and removes the knife from H’s stomach. He bleeds to death within a matter of
minutes. W carefully puts the knife back into H’s hand and places the bloodied dish cloth in
her bag. When the emergency services arrive she tells them that H removed the knife
himself.

Consider the criminal liability of W in the following two scenarios arising from the above
facts:

(i) On a charge of assault with intent to do grievous bodily harm resulting from W stabbing H
in the stomach, consider whether W could successfully raise any defence/s;

and
(ii) On a charge of murdering H, consider W’s criminal liability.

Where appropriate deal with onus of proof.

Question 3

Adam and Brett are crew members of a fishing vessel The Piranha. Adam captains the vessel
on its fishing expeditions from Hout Bay and Brett works on board in the engine- room
during these fishing trips. For six months the crew of The Piranha have been part of a
syndicate of fishing vessels that have been catching large quantities of the rare white
Steenbras—a fish protected by environmental legislation which imposes heavy criminal
penalties on those convicted of catching this particular species. Adam, Brett and the rest of
the crew are aware of the fact that the catching of white Steenbras is prohibited by law.

The Piranha has been at sea for a few days and on the day in question her crew net a large
haul of white Steenbras. While they are loading the fish into the hold some slip back into the
ocean and, as is often the case on these trips, a few large sharks following the vessel enjoy
easy pickings. The day in question is no exception and at least one large Great White shark is
seen trailing the fishing vessel.

After storing the Steenbras in the hold, Adam, Brett and the other four deck hands are making
their way back to Hout Bay when they are intercepted by a coast guard vessel manned by
members of the newly formed ‘blue scorpions’ unit which specialises in marine conservation
contraventions. The captain of the coastguard vessel, who has received a tip off that The
Piranha has been fishing illegally, calls upon The Piranha to slow down and permit the blue
scorpions to board. His intention is to arrest the captain and crew for illegally catching white
Steenbras.

The Piranha does slow down and two blue scorpion officers prepare to climb from the
coastguard vessel onto the deck of The Piranha via a rope ladder that has been lowered by the
deckhands of The Piranha. Adam waits until the officers have started their precarious ascent
and then rushes into the engine-room, points a gun at Brett and orders him to give immediate
full throttle to the powerful engines of The Piranha. Brett has heard the

coastguard announcements and is terrified by the sight of Adam wielding a gun. He

immediately complies with the order of Adam and The Piranha lurches forward under full
throttle. The two coastguard officers, who are about to clamber onto the deck of The Piranha
lose their balance as a result of the surge in the vessel’s power and are thrown from the ladder
into the sea below. One of the officers is retrieved and pulled back to safety by the crew of
the coastguard vessel but the other, who has cut his arm in the fall and is bleeding, is eaten by
the Great White shark before the captain of the coastguard vessel and his remaining crew can
rescue him.

The captain of the coastguard vessel shouts to the crew of The Piranha that he is arresting
them and fires a warning shot above the escaping boat. The Piranha continues to make its
getaway and the captain of the coastguard vessel fires another shot at the figures standing on
deck and the bullet strikes and kills a deckhand on The Piranha. Adam, who is on deck still
wielding a gun, orders the rest of the crew to throw the Steenbras overboard to the sharks and
proceed on their journey.
When The Piranha returns to Hout Bay, Adam and Brett are arrested and charged with the
murder/culpable homicide of the blue scorpion officer who was eaten by the shark when
attempting to board The Piranha.

1. (i) Consider the criminal liability of Adam and Brett for the death of this blue
scorpion officer and consider whether Brett could successfully raise any defence on
such a charge.
2. (ii) Also consider whether the coastguard captain could successfully raise a defence
to the killing of the deckhand struck by his second bullet.

[20 MARKS]

Question 4

Mrs. May, a 50-year-old woman living in Cape Town, who has been married to her
husband for 25 years, is suffering from a humiliating disease that causes
progressive muscle weakness. This muscle weakness progresses from severe
weakness of the arms and legs to the muscles controlling speaking and swallowing
and finally to the muscles controlling breathing, so leading to respiratory failure and
pneumonia. No treatment can prevent the progression of the disease.

Mrs. May was diagnosed with this disease in 2000 and the disease is now in an
advanced stage where she is essentially paralyzed from the neck downwards and is
fed by a tube. Her life expectancy is measured in months.She is still mentally alert
and has sufficient power of speech to communicate with her husband. She requests
him to petition the DPP to grant an undertaking not to prosecute him if he assists his
wife to commit suicide, since she no longer has the physical capacity to do so
herself.

The DPP refuses to give such an undertaking and it is argued on behalf of Mrs. May
before the Constitutional Court that this decision of the DPP unreasonably and
unjustifiably violates her right to dignity, privacy and equality under the South African
Constitution.

You appear for Mrs. May in the Constitutional Court. How would you frame your
legal argument?Would it make a difference to your approach if:

(i) Mrs. May had signed a 'living will' prior to her contracting the life - threatening
disease (giving her consent in advance to the withholding of life support if she ever
got into a terminally-ill condition); or
(ii) The initial request to the DPP had included a petition to the DPP to decline to
prosecute if the health authorities (as opposed to her husband) allowed Mrs. May to
die with dignity by withholding life support?

If her husband helps her die, he will be guilty of murder. (Grotjohn; consent. Also, Estate
Late Stansham-Ford).
Constitutional court should develop CL  defence of consent to be developed so that he
will not be charged with murder.
Was the DPP unreasonable? Surely you should be allowed to die with dignity if you want?

How would we persuade the CC to develop the CL?

Starting point: to set out what is required for consent as a defence to succeed.
1. Complainant’s consent must be recognised by law (this is in issue in this circumstance)
2. It must be real consent (informed, voluntary)
3. It must be given by a person capable in law of consenting

Why should the CC develop the law to enable a person to consent to be killed?
We start looking at broader policy arguments;
- Invasion of dignity
- A healthy person can commit suicide, but we don’t let a person who is too ill to kill
themselves die with consent = discrimination.
- There is no public interest in keeping someone who is really sick alive.

Counter argument – how do we know if there is real consent? (sometimes people are really
delirious for example). In this case we know she has given proper consent.

Note: not an offence to attempt to commit suicide and fail.

Stransham-Ford case.
SCA judgment - court said that this was something better dealt with by the legislature.

Mrs. May’s living will asking that life-support treatment be withheld:

Stronger, but not firm grounds. The validity of a living will has not been examined by our
courts yet.
South African Law Commission would like to see living wills recognised.

Immunity from prosecution for health authorities:

Considers the serious concern of families knocking off their relatives for improper reasons.

Clarke v Hurst
Husband was in a permanent vegetative state. Wife was allowed to instruct hospital to take
him off life-support system. Here, no ability to give consent. PASSIVE recognition.

Stronger argument for Mrs. May because she could give consent?
Perhaps she should just refuse treatment and go home? BUT people want to die with dignity
and not be in pain – this is the whole point of euthanasia.

5. After hearing the good news that they have passed their LLB examinations,
Waldo and his friends go to town to celebrate with some drinks. After Waldo
has consumed 8 beers he becomes involved in an argument with Rocky, who
has insulted Waldo's girlfriend, by calling her a 'whore'. Waldo takes a wild
swing at Rocky with the bottle he has in his right hand and the bottle breaks
against Rocky's forehead. Rocky falls to the ground. Waldo's friend, Roshan,
tries to calm Waldo but, in trying to restrain him, Waldo lacerates Roshan's
arm with the broken bottle.

Rocky dies as a result of the attack on him by Waldo and Roshan requires
numerous stitches in his arm to repair the injuries caused by the broken bottle,
wielded by Waldo.

Consider the criminal liability of Waldo for the murder/culpable homicide of Rocky
and for assault with intent to cause grievous bodily harm regarding Roshan.
Consider the success of any defence/s that Waldo might wish to raise.
Break it down into the two charges (count 1: murder/culp. of Rocky; count 2: assault GBH of
Roshan). Then deal with the straightforward elements, before focussing on the troublesome
elements, as follows.

Count 1 and 2 (the elements should be second-nature):

unlawful
intentional
killing of another (count 1) or assault GBH (count 2)
causation
capacity
voluntary
conduct

Everything is easy except intention, capacity, and voluntariness, all of which are at issue
because of the possible defence of intoxication (both counts) and provocation (only count
1). Note that we must consider them in order (voluntariness -> capacity -> mens rea)
because e.g. if there isn’t voluntariness the issue of capacity won’t arise.

Finally, we will need to consider the statutory offence created by the Criminal Law
Amendment Act.

S v Chretien
This created the defence of voluntary, self-induced intoxication (involuntary intoxication
was always a defence), thus changing the position established in Bourke. The AD acquitted
Chretien of murder and attempted murder because he had no intention to kill (because the
Court accepted the accused’s testimony that he expected the people to get out the way). He
was convicted of culpable homicide, because the negligence standard to be applied is that
of the reasonable sober person. But assault was really the key matter before the AD. Rumpff
CJ rejected the specific intent rule, and said that intoxication is a defence if it is of the
degree necessary to exclude voluntariness, capacity or mens rea. On this basis Chretien was
acquitted of assault.

As to s 1(1) of the Criminal Law Amendment Act, this is limited to cases where capacity was
excluded. This seems to arbitrarily limit its sphere of operation, and leads to the absurdity
that the prosecution must prove beyond a reasonable doubt that the accused lacked
capacity (a complete volte face from what it had to prove in the initial offence). It was
confirmed in September and Mbete that the prosecution must prove that the accused was
not liable under the common-law offence.

S v Eadie
This case shows that the test for capacity (at least in the context of provocation) is different
to what was understood, and severely constrains the defence of provocation. Essentially,
the voluntariness and capacity (or at least the second stage: couldn’t act in accordance with
one’s appreciation) enquiries are one and the same; provocation is only a defence if it leads
to automatism. On the other hand, one could still defend oneself on the first stage of the
capacity enquiry (had no appreciation of right and wrong) but it is so easy for the
prosecution to deal with this (almost any facts showing that you weren’t completely dotty
would be enough).

Application to facts

Count 1: could have argued pre-Eadie that Waldo lacked conative capacity, but post-Eadie
this won’t be helpful (because clearly Waldo was not in a state of automatism). The facts
suggest he was relatively lucid, so he has capacity. One could argue, further, that he had no
intent to kill (compare Eadie’s calculated and repeated attacks). Here the extent of his
drunkenness would have to be assessed on the facts. If he was acquitted of murder, he
would probably be convicted for culpable homicide (because the standard is the reasonable
sober person).

Count 2: almost definitely Waldo had no GBH intent (Roshan was his friend; no evidence
that he took any deliberate actions). For these same reasons there probably wasn’t even
voluntariness. This would lead to acquittal. But section 1(1) would then operate here. We
have seen some of the difficulties with it (and sentencing is a further difficulty).

More comprehensive answer

INTOXICATION:

- Alcohol or the intake of drugs may deprive a person of the capacity to appreciate the
wrongfulness of his conduct or the capacity to act in accordance with such appreciation.
- Intoxication removes, weakens inhibitions and impairs the capacity to distinguish right from
wrong, also conducive to crimes of negligence – impairs power of perception and reactions
- Crimes requiring specific intent could be excused by voluntary intoxication (murder).
- Voluntary intoxication cannot be a defence for crimes which do not require specific intent
(culpable homicide).
- Absence of pathological mental illness distinguishes intoxication from insanity

- SA used to follow the specific intent rule – voluntary intoxication of a degree sufficient to negate
the relevant specific intent required – would be a good defence, would be found guilty of a lessor
charge
- Where offence does not have intent as a requirement – then intoxication was not a defence but
rather a mitigating circumstance

1. S v ChretienCase: Asks in class

- Got drunk at a party. Party was broken up. Chretien drove into a crowd standing outside the party
venue in the road but at the side. Killed 1 and injured 5.
- Accused of murder (1 person he killed) and attempted murder (over 5), but convicted of culpable
homicide.
- Acquitted of murder and even common assault as these require specific intent – and the accused
did not have the requisite intent due to level of intoxication. Also that he genuinely thought that
they would get out of the way. This provides reasonable doubt.
- Court stressed the importance of the degree of intoxication and thus a distinction was drawn
between ‘dead drunk’ and slightly drunk - The former is a basis for acquittal, and the latter is no
defence at all.
- This leads that voluntary intoxication can be used as a defence, but it is dependent on the degree
(did it deprive him of criminal capacity)
- Court placed voluntary intoxication on the same basis of legal principle as youthfulness, insanity,
etc
- Intoxication of a sufficient degree can exclude voluntariness of conduct, criminal capacity or
intention – but the court stressed that they would be very strict on this (high degree of evidence
needed)

- In SA if a person voluntarily and deliberately gets drunk in order to commit a crime – he is guilty
of the crime even though at the time he is blind drunk and acting involuntarily (actio libera in
cause rule) – look at the distinction from above situation

2. Intoxication after Chretien – Parliament: Asks in class

- Parliament countered this by enacting the Criminal Law Amendment Act – as the effect of
Chretien (rationalised the law) but the effect is that the more intoxicated you are the more likely
you are to escape liability
- Thus, any person who voluntarily intoxicates himself (which impairs his faculties meaning lack of
capacity) knowing that the substance would have that effect, commits a crime, and is held not to
be liable (common law crime) because his faculties were impaired, then that person shall be guilty
of an offence (statutory crime) and thus liable for conviction
- The accused will be held liable under s(1)(2) for a contravention of s(1)(1) of the Criminal Law
Amendment Act
- Regard intoxication as an aggravating circumstance
- Then the person will be liable for that crime even if wrongfulness cannot be appreciated.

- Elements of the new offence

a) Consumption or use of any intoxicating substance by the accused
b) Impairment of the accused (appreciation of wrongfulness or to act in accordance with
that appreciation)
 c) Knowledge that substance has the effect of impairing faculties
d) Unlawful act while being impaired
e) Accused is not criminally liable because of the impairment – subsequently held liable
for a statutory offence

- Under the act, Chretien would still escape liability, because he did not have mens rea capacity
even though he still had criminal capacity. Prosecution had not proved intention beyond a
reasonable doubt  he acted voluntarily, had capacity, but did not have intention. Then can’t use
s 1(1) because have already proved capacity etc
- The act zones into the legal capacity.
- It is clear that a ‘dead drunk person would fall into the ambit

Note: the accused gets acquitted of murder because he was too drunk and thus lacked the necessary
intention to commit the crime, then the prosecution bring in a new charge under s1(1) of Criminal
Law Amendment Act – contravened s1(1) – Two separate charges!!!!!!

a. Is a person who becomes involuntarily intoxicated liable for contravening the Act?
- A person will be acquitted if the person’s drink was:
i. Spiked and did not know what effect it was going to have, and
ii. If he was forced even though he knew, what the consequences were.
- Thus, only voluntary intoxication – interpret the words ‘consumes or uses’ as implying conduct
directed by the will of the person who imbibes – therefore importing voluntary intoxication

b. Is a person who has capacity for criminal liability, but as a result of intoxication, lacks
intention to commit a crime, liable under the Act?
- Liability under s1(1) – dependent on prosecution proving that as a result of the consumption the
accused was suffering from an impairment of his faculties to appreciate wrongfulness (i.e. lacks
criminal capacity)
- Liability under section is based on impairment of faculties leading to lack of criminal capacity
- Also escape liability because person lacked mens rea
- Acting involuntarily, state of blind drunkenness – fall under act as a person acting involuntarily
also lacks criminal capacity

c. Lack of capacity resulting from intoxication – an element of the offence:

- S1(1) makes intoxication an element for liability
- Be easier if legislature used words ‘not convicted’ rather than ‘not liable’
- ‘Not liable’ indicate that the prosecution must prove accused lacked criminal capacity in order to
secure a conviction under s1(1)
- Therefore not sure whether prosecution have to prove beyond reasonable doubt that the accused
was intoxicated to that degree or whether the acquittal is sufficient
- S v Mbele – acquittal of a common law crime due to fact that there was a reasonable doubt about
criminal capacity – would not be sufficient for a conviction under s1(1)
- S v September – prosecution have to prove all the elements of the offence

d. Positive Acts only:

- SA act only covers positive acts

e. Fault (mens rea)

- S1(1) – accused must know substance would impair criminal capacity
- Foresight = sufficient for liability
- S v Lange – only a general knowledge or understanding is required

f. Prohibited Conduct
- Any act prohibited by law

g. Section 1(2)
- Provides that a contravention of s1(1) will be regarded as a competent verdict on a charge of
another offence
- S1(1) creates a new offence and a back up offence (acquittal required for this)
- S1(1) penalty for contravention is the possible penalty for which accused was acquitted of under
the common law crime (i.e. if charged for original offence what would the penalty be)
- Sentence imposed will record the nature of the conduct in the original charge
- NB to note that the two charges and offences are separate ones
- S v D – S1(1) provides a distinct offence with distinctive elements, and a distinction must be
drawn. The same penalty might be imposed but it is not the same offence
- Mbele – they can use the sentence under the common law crime, but don’t have to

h. Intoxication as an aggravating factor:

- Intoxication is regarded as an aggravating circumstance
- Court has discretion though

PROVOCATION AND EMOTIONAL STRESS:

1. The Options:
- There are a number of different approaches to provocation:
a. Not a defence to criminal liability, seen as a mitigating circumstance
b. Middle ground, some limited form of defence – confined to murder
o Partial defence - rejected in SA law
o Sentenced mitigated to manslaughter
c. Provocation as only a partial defence, defence is dependant on the absence of proof of an element
of intent (Scottish law)
d. Provocation of a sufficient degree can affect criminal liability and may lead to a complete defence
to all types of criminal conduct
- Current SA approach:
o Excluding voluntariness of conduct leading to automatism, or
o Excluding criminal capacity, or
o Excluding intention
- SA law uses the ‘subjectively-assessed capacity inquiry’ – capacity to appreciate wrongfulness
and capacity to act in accordance (not sure whether it is totally subjective or has an objective
element to it as well)
- Same capacity enquiry as with insanity – but onus is not on the accused
- Diminished responsibility – is seen as a mitigating sentence – not affect verdict

2. Provocation in a new light:

- Partial excuse rule was rejected in S v Bailey
- Court adopted a new approach: - evidence of provocation was relevant to the existence of
intention as well as the finding of criminal capacity
- Court found that any factor, provocation, intoxication, insanity, could impair criminal capacity
(subjective enquiry) and lead to an acquittal – ‘subjective capacity concept’
- Broadened understanding of provocation to include emotional stress
- Distinguished between non-pathological incapacity and that of insanity/ pathological incapacity
- 3 Cases were accused’s were acquitted
o Arnold (acted involuntary when he shot his wife, lacked all the aspect of liability –
show how dangerous an open ended subjective test actually is),
o Nursingh (emotional storm, triggered by sexual abuse over many years, was evidence
of lack of capacity, subjectively assessed, there was not objective aspects raised by
the prosecution, reasonable doubt – acquitted),
o Moses,
 o Wiid – successfully raised defence of provocation and were acquitted – criminal
capacity had not been proven beyond reasonable doubt due to emotional stress at the
time or prior to the act
- Subjective evidence has to be credible for a successful defence

3. Interpretations of Eadie Case: Asks in class

- E was convicted of murder – lost temper – battered deceased to death (hockey stick)
- SCA reviewed the jurisprudence on provocation and emotional stress – indicated that although the
test of capacity might still remain subjective, but it had to be approached with caution
- Court said accused could not successfully raise the defence of non-pathological incapacity where
he had battered deceased to death in road rage
- Drew a distinction between loss of control and loss of temper
- Guilty of murder
- Evidence used was – displayed goal orientated behaviour (cat and mouse routine, picked a hockey
stick, dispose of the hockey stick)
- Restricted the defence of provocation to severe emotional abuse over a long period

- Textbook talks of three possible interpretations of Eadie

o Subjective assessment of capacity – focus on the accepted process of judicial
inference of the presence/ absence of subjective capacity – by examining objective
facts and circumstances
o Possible restriction of the ambit of defence of lack of capacity (connotative capacity)
to a situation where automatism is present – shift the test of capacity to an objective
enquiry
o Identification of a qualified objective aspect within a subjective test of capacity

- Note (from class) 

o In principle, defence of provocation is restricted to involuntary conduct but does not
extend beyond this
o Provocation will only be a defence if it reaches the stage of involuntary conduct 
would only be in an extreme situation
o Put a break on the application of the defence. Not an open- ended defence, can only
be used in very specific circumstances

a. Interpretation ‘a’ – Reasoning by inference:

- Use permissible inferences from objective facts and circumstances
- Court cautioned - must not too readily accept the accused ipse dixit – i.e. his own evidence
regarding to provocation or emotional stress
- Court needs to infer from looking at the objective facts
- Court said too much deference was paid, in the past, to the accused version of the facts, and not
enough weight given to accused evidence in light of surrounding circumstances
- Will evaluate against objective standards of acceptable behaviour
- Court distinguished between ‘loss of temper’ and ‘gradual emotional stress’ – the latter being
acceptable
- Courts will look at claim of provocation – justify it in light of:
o Policy of law is one of reasonable restraint - judicial expectations of behaviour (some
control over emotions)
o Sufficient evidence
o Process of inference from what the accused mental state aught to have been and what
it actually was (look at actions, circumstances, human experience, social interaction
and norms)
- Court found accused guilty due to – goal orientated and focused behaviour before, during and
after which indicated presence of mind and intention

b. Interpretation ‘b’ – Objective test of capacity:

- Conative inquiry relates to capacity to act voluntarily or rationally
- Voluntariness inquiry is focused on whether the accused actually did act voluntarily (i.e. control
his conscious will)
- Some people think that the connotative and the cognitive aspects of capacity overlap and thus the
need for the connotative aspect is not there – i.e. don’t really have to enquire into whether the
accused acted in accordance of the appreciation of wrongfulness
- Burchell – the separation of the two tests of voluntariness is NB as the conative test relates to
whether the accused had the capacity to act voluntarily and rationally, and the voluntariness test
relates to whether the accused actually did act voluntarily
o If the person lacks the capacity to act voluntarily there is no need to enquire whether
they actually did act voluntarily – would be acquitted on the grounds of non-
pathological insanity (but subject the action in libera causa principle)
- Blah read the section – Says NO

c. Interpretation ‘c’ – Evaluative or Normative facet of subjective capacity:

- Q: did the judgement unearth an objective aspect of the capacity inquiry – been implicit but not
judicially acknowledged until now
- Second part of capacity test (conative part) involves an enquiry as to whether the accused could
have acted differently (exercise of judgment and not knowledge)
o If in no circumstance could he have acted differently – then conduct would be
involuntary and not controlled by conscious will
o If there was a choice – then conative capacity comes into play and the capacity
inquiry implies a choice
- Therefore, second leg of capacity enquiry as ‘the capacity to act differently’ – implies an
evaluation of accused conduct against some other standard of conduct in circumstances and
against standard of persons falling into particular group
- Thus includes a reference to the group of people that the accused belongs to
- Subjective test takes into account:
o Accused subjective mental condition (but not to much weight on the ipse dixit of the
accused)
o Conative aspect – could the accused reasonable have been expected to have acted
differently/ acted in appreciation of wrongfulness of conduct (done via comparison of
accused conduct with societal norms of sobriety and level-headedness)

4. Concluding remarks on provocation after Eadie Case:

- Inferential reasoning – but applied cautiously
- The judgement did not introduce non-existent objective elements into the lack of capacity defence
(as would have had to overrule numerous previous judgements)
- Interpretation ‘c’ may be best
o Thus court can only judge whether an accused had capacity to control irrational
conduct, by assessing conduct against a standard outside the accused capacities and
capabilities
o Deviations from rational standard would demonstrate a self-fulfilling prophecy – not
capable of controlling irrational behaviour – result would thus turn on respective
clarity of competing psychological evidence
- Standard is that of:
o Provocation: - norm of a level headed members of society
o Intoxication: - norm of sobriety
o Compulsion: - norm of reasonable fortitude (resilience, strength, etc)
- Court will draw inferences regarding the accused capacity/ mental state from objective
circumstances of case
- Capacity element will normally be found to be present by direct or indirect inference – therefore
next enquiry can be made
- Murder – subjective intention and knowledge of unlawfulness, proved or inferred,
- Culpable homicide - if unable to prove or infer intention and knowledge of unlawfulness, if
negligence (tested objectively) could be proven or inferred
- NB remember – in SA ‘subjective foresight’ of real possibility of death resulting from conduct,
includes knowledge of unlawfulness + proceeding with such conduct – will be sufficient to
establish mens rea for murder
- NB remember – ‘objective foreseeability’ of death and failure to take reasonable steps to guard
against possibility – will satisfy the fault element for culpable homicide

5. Domestic Violence:

- Domestic Violence from the Domestic Violence Act:

o Physical
o Emotional
o Economical

- Battered Woman Syndrome:

- Concept of ‘learned helplessness’ is why they don’t run away or take alternative action (i.e. think
there is no way out
- S v Ferreirra – contract killing, evidence of well documented pattern of abused intimate partners
– accepted as mitigating circumstances (physical and psychological abuse)

- Self-defence against abuse:

- Subject to actual or imminent application of physical violence – entitled to retaliate in legitimate
self-defence
- Problem – when there is no commenced or imminent attack, but victim subjected physical/ mental
abuse – extended periods - eventually kills attacker during a lull in the abuse

- Engelbregt Case:
- Thumb cuffs and strangled with a bag
- ‘Battered woman syndrome’ used to extend the circumstances in which self-defence can be raised
- The test for determining an attack maybe determined differently, in the sense that it is not
imminent but rather inevitable (further domestic violence was considered to be imminent) – thus
can extend imminence to inevitability where there is a history of prolonged abuse
- Must prove more than inevitability – was the accused actions reasonable, have to prove to other
elements of defence (must exhaust all options)
- Developed in accordance with other systems of law – international

- Incapacity and putative self-defence:

- Seem that the admissibility of evidence based on battered woman syndrome – allow for such
evidence being admitted in support of:
o Defence of lack of capacity
o Putative private defence

- Protection orders:
- Domestic Violence Act – provides for protection orders in case of domestic violence
- Defines domestic violence – physical, sexual, emotional, psychological abuse as well as economic
abuse, harassment and stalking

CLASS NOTES
Legal Issues 
- Charges  murder/ culpable homicide (count 1) and assault GBH (count 2)
- Define each crime
- Look at the elements of the crime  elements of criminal liability
o Count 1  voluntariness, problem does not involve causation (Rocky dies as a
result of the attack on him; indicates causation is present), capacity (non-
pathological), mens rea, s 1(1) of the Criminal Law Amendment Act
o Count 2  voluntariness, capacity (non- pathological), mens rea, s 1(1) of the
Criminal Law Amendment Act
Conclusion on the facts
Count 1
- Not guilty of murder because he might have lacked mens rea (did not mean to knock
Rocky so hard)
- Culpable homicide  death was reasonably foreseeable. Presence of negligence
- Voluntariness aspect would have to be looked at first. Would say that he was acting
voluntarily in that he could understand the insult, respond to the insult, and hit somebody.
Not ‘dead drunk’.
- Capacity  even a drunk person insulted in this manner in that he knew what he was
doing was wrong
- Because found culp here do not have to deal with section 1
Count 2
- Not voluntary  cut friend by a mistake. No goal- directed conduct. While friend trying
to restrain him accident happened. Harm occurred inadvertently
- If find involuntary conduct, this includes lack of capacity and mens rea
- This is where section 1(1) comes into play.
- Test of section 1(1) related to capacity, and must therefore relate to voluntary conduct. If
prosecution can show that conduct involuntary after consumption of alcohol etc, then can
use section 1 (1) as not liable under CL

6. Pablo is a South American visitor to South Africa for the 2010 World Cup. In
order to keep in touch with his family and business interests in Colombia he
purchases a cell phone, SIM card and starter pack from Vodacom in
Cavendish. The person from whom he purchases these items (Yasmin) tells
him that if he were a South African citizen or a permanent resident in South
Africa he would have to produce proof of identify, place of residence and
register his SIM card but that, as he is a South American national only here
for the duration of the soccer tournament, she is under the impression that
these fairly new requirements under the Regulation of Interception of
Communications Act do not apply to him and she therefore does not formally
register his SIM card or record any further details.

Pablo makes many calls on his new cell phone to contacts in South America, but
when he tries to leave South Africa after the soccer tournament, he is stopped at the
airport and arrested under the Regulation of Interception of Communications Act
which requires ‘everyone who has an active cell phone number or purchases a new
pre-paid starter kit, to register the SIM card’ and lays down stiff penalties for non-
compliance. Pablo claims that Yasmin at Vodacom assured him that he did not need
to register as he was a foreign national visiting South Africa for the duration of the
World Cup Soccer Tournament. Yasmin is also arrested for failing to comply with the
service provider’s obligations under the legislation, which include recording the ‘full
name and surname, identity number and at least one address of such person and
the country where the passport was issued’ of a person who ‘is not a South African
citizen or who is not permanently resident in the Republic, and who requests that a
SIM card be activated…’.

Both Pablo and Yasmin raise the defence that they did not know that they were
required, as is the case, by law to register the SIM card of a temporary visitor to
South Africa or record any particular details relating to the purchaser/user of the cell
phone. Consider the criminal liability of both Pablo and Yasmin under the Regulation
of Interception of Communications Act. In the course of your answer mention the
issue of onus of proof.
Could Vodacom, as a juristic entity, be liable for failing to record Pablo’s details and
register his SIM card?

Unlike all other tutorial examples we’ve had, here we have a statutory offence. Our thought
process must thus be slightly different. We have to deal first with interpretation of criminal
statutes to determine whether the intention of the legislature was strict liability or not.
What are the rules in criminal law in interpreting the rules of a statute? What is the
intention of the legislature? Is this a strict liability offence or is it fault based?

If there is strict liability then obviously he is in contravention of RICA. The words knowingly,
maliciously etc. are not included in the Act so we could say that there is strict liability. There
may also be important policy reasons for strict liability, such as the high crime rate and the
potential of this legislation to counteract this.

Therefore, the central issue in this example is mens rea in statutory offences. So, what are
the main questions?

a) Is this a strict liability offence or is there a fault standard?

There is a well-entrenched presumption of fault in statutory offences in law. (De Blom,

Coetzee, Arenstien). Also, in Coetzee the Constitutional Court said that our whole system of
criminal law is based upon fault (this goes further than a mere presumption). This has to do
with constitutional parameters of blameworthiness, of liability for crime. All that supports
strict liability is a dissenting judgment in Amalgamated Beverage Industries. So, we conclude
that there should be a fault requirement.

b) The next question must be: what kind of mens rea? Intention or negligence?

There are four interpretive factors to determine what form of fault is required (these factors
are used at two levels, both to determine whether there is fault and to determine whether
negligence is the fault factor):

i) The language
ii) The purpose/object of the statute. The object of this statute is to track
criminals using cellphones for illegal activity, in a country where crime is
rife. This would seem to be a very important purpose (as opposed to a
purpose such as doing a survey of cellphone users)
iii) The penalty. Burchell couldn’t be fucked to find out what the penalty was
for this statute. Let’s assume a strict penalty. This would imply that a high
degree of circumspection is required, and would motivate towards
negligence being the fault standard.
iv) The ease with which the prohibition could be evaded if the alleged offender
could plead ignorance of its content (if intention is the fault standard). If
intention was the fault standard, what would be the practical result? Surely,
every accused would claim ignorance of the law and say that they were
unaware of RICA. This too, would seem to point towards negligence.
We still haven’t arrived at the central inquiry, which is: knowledge of unlawfulness.

So, in stating the law we need to look at: the principle in De Blom, when ignorance is an
excuse, and then we look at the proviso in De Blom relating to negligence and sphere of
activity.

Now, let’s look at the individual parties:

Pablo:

If strict liability applies, then he’s liable plain and simple. But what if fault in the form of
intention is required? It will depend whether his belief is bona fide and genuine or not. The
facts suggest that this is the case. He’s a foreigner, and just here to enjoy the world cup and
enjoy the “good vibrations” (honest to God, Burchell’s own words). He would merely need
to lay a foundation for the defence of ignorance of the law, excluding intention. The onus
would be on the prosecution to show that the belief was not so.

But if negligence is sufficient, then the question is whether his belief is reasonable. On the
basis of the four factors, it seems that negligence is the fault standard. In S v Longdistance a
man wanted to know whether he could transport a large quantity of sugar by road and he
wanted to know if he needed a permit. He was told by a lawyer that he didn’t require a
permit. He went ahead and transported the sugar, and was charged with contravening the
Road Transportation Act. The court found that the statute only required negligence, and
found further that he had been negligent even though he relied on legal advice. They held
that legal advice has no magic in which justifies the recipient in jettisoning his common
sense. The advice was so bizarre that he ought to have sought a second opinion. The
legislation was complex, and the advice was contrary to common sense.

Does the Longdistance approach apply here, in Pablo’s decision to rely on Yasmin’s advice?
She wasn’t a lawyer, certainly. But she was the person working in Vodacom, a shop
specialising in cellphones. Surely he could rely on her to give him the correct advice. It isn’t a
complex matter
This was not a complex matter though, and is distinguishable from Longdistance. It was
reasonable to rely on what Yasmin said.

Yasmin:

Her liability is different. Why? Because if negligence is sufficient, then the proviso in De
Blom comes into play. Where a person works in a particular sphere of activity, then he or
she ought to know the law relating to that sphere of activity, and if he or she doesn’t then
he or she will be adjudged negligent. Yasmin works in this sphere of activity, and therefore
ought to know the law in this area. The problem of what a sphere of activity is doesn’t arise,
because a person working in a cellphone shop ought to know the law relating to cellphones.
She would therefore be liable on the basis of mere negligence.
 Vodacom:

Remember corporate criminal liability. Section332 of the CPA essentially imputes the
conduct and the fault of an employee to the company itself. Vodacom could thus be liable in
terms of that section.

If there are fault words in the legislation, such as “fraudulently, knowingly etc.” which imply
intention, then you do not refer to the proviso in De Blom.

1. Alfred is a teacher in a small rural school on the West Coast. Badow, who is
eleven years’ old and a pupil in Alfred’s class, has been disruptive at school.

On the day in question, Badow throws a heavy wooden blackboard cleaner which
breaks a window. Alfred decides to discipline Badow in order to bring order to the
class. He calls Badow to the front of the room and, after telling him to face the wall,
administers three blows across Badow’s buttocks with a long plastic ruler.

When Badow returns home and tells his mother what has happened, she decides to
lay a charge against Alfred for assaulting her son. Would Alfred be able to
successfully raise any defence(s) to this charge?

When George, Badow’s father, becomes aware of Alfred’s disciplinary action against
his son and is told of his wife’s decision to instigate a prosecution against Alfred for
assault, he slaps the back of his son’s bare legs twice with his open hand—shouting:
‘No son of mine behaves like that. Perhaps this will teach you some manners!’ Is
George guilty of assaulting his son?

Alfred and Badow

Does Alfred have a defence? He has been charged with assault: unlawfully and intentionally
applying force to the person of another.
Starting point: would he meet the requirements of the offence? Unlawful act is there – he
hit the child, and clearly he intended to hit the child.
CL  yes he would have had a defence – teachers were allowed to use corporal
punishment.
Democratic era  1996: s (10) of the SA school act abolishes corporal punishment in
schools. Applies to both private and public schools. So on the face of it there is no defence.
Any possible defence? Disciplinary chastisement? No – only applies to parents. Putative
disciplinary chastisement – rural school – doesn’t know that the legislation has been passed,
and thinks that he is still entitled to exercise disciplinary chastisement – no knowledge of
unlawfulness.

Father? Disciplinary chastisement applies.

Note: in an exam she doesn’t expect us to remember sections. Try remember the name of
the act. Or number and the year.