Transcript

4 March 2024, 06:00am

Tjaart Viljoen 0:08

OK.
Good morning, ladies and gentlemen, and thank you for joining us this early in the
morning on a Monday morning, I trusted you weekends were, yeah, well of Nice
things, just a brief indication.
Can you see my screen?
Can you hear me?
Everything good to go.
Advocate game.
Yes, your hand is up.
Go ahead.
Advocate came.
Anybody can you hear me?
Can you see my screen?

OM Radiokana 0:56
Yes, Sir, we can.

Tjaart Viljoen 0:58

Awesome, alright.

Nkosana Mabecha 0:59

Yes.
So that's why you see your screen.

Tjaart Viljoen 1:01

Perfect.
OK, I see at least when numbers are picking up slightly, we are 202 and counting in
class.

Adv Kemi 1:03

My.

Tjaart Viljoen 1:11

So let's let's hope that large volumes will join us this morning.
And with these recordings that you are receiving will not Makhubela numbers of
attendance to dwindle spectacularly, because that is going to cause a few issues.
And we might decide not to make what recordings available, but OK, so generally,
how was the weekend?
Anybody any news?
Good news, hopefully good news.
Vathiswa Gcusa 1:44
It was social.

Tjaart Viljoen 1:46

It just just said put up your volume slightly.
What is no news?
Good news.
It was social. Ah.
What does social mean?
Were you drinking copious amounts of alcohol?
Ooh, I see.
It's too bright and it's too early on a Monday morning.
Maybe we should start with class at?
I don't know 10:00 o'clock or something in the morning because we are still sleeping.
Alright, OK.
So what we busy with at the moment, we are looking at study Unit 3.
We are essentially looking at the the first element of a crime, say, for the principle of
legality, which has to be present, which we dealt with comprehensively last week.
We now looking at the element of contract and and what exactly conduct entails for
purposes of criminal liability, maybe let's just go go one step back because I've
received quite a few emails last week and over the weekend asking about which
cases are important.
Is anybody interested in hearing which cases are important?

TV Tsotetsi 3:24
Yes, Sir.

Vathiswa Gcusa 3:25

Yes, Sir.

OM Radiokana 3:25
Yes.

Tjaart Viljoen 3:26

Umm, all of them.
Alright, look and for now and and and this is my approach but but I still need to to
just have a proper look.
The other lecturers are sending me questions and things for you first Test, which
you're writing next week and and we will give you arrangements and and everything.
Uh, for all of you this week so that you are in a position to to attend on, I think it's
Monday.
Yeah, yeah.
Should be Monday morning, so those specific arrangements will will come through
during the week when when it comes to to cases for now.
Umm.
If if we look at the approach that we're taking and and the style of teaching that I
have and and that's why I'm saying take this with a bit of a pinch of salt for now.
But, but we'll communicate.
What?
What is important when it when it comes to case law?
Uh, we we dealt with Marcia rather intensively and specifically when it comes to
legality etcetera that that should give one a bit of an indication that that case might
be robbery important and that one should have a full understanding to to be able to
maybe have a case discussion of sort about that.
But for a start, when when one looks at cases and you'll see when when we go
through the slides today as well.
What did we say?
The law is interesting and the law is open for debate because the factual
circumstances differ and and because there are small differences in factual
circumstances.
Therefore, the court reaches a different conclusion.
So if 11 looks at these cases, it's important to know or to have a good idea as to
what the facts were, and then if they are ever cases that deal with a similar thing like
we will deal with today cases we deal with voluntariness and cases that deal with
being intoxicated etcetera, etcetera.
Then you'll see what what we pay attention to is just basically, why did the court
reach a different conclusion in this particular case, as opposed to that one?
What were the differences in facts between the two, and how did that when
ultimately influence the application of that particular element?
If we look at vacations, which we'll deal with today with our versus and kissing, there
was no voluntary act because there was no prior history of warning of epilepsy,
whereas in the Victor case there was a slight difference and at that difference in in
facts, that difference in evidence that was presented to the court and how that led to
a different conclusion, a different application.
So that you are able to take a scenario which I give to you and you say.
But this scenario is similar to this one, and the court reached the conclusion now or
this was was the court judgment, the court ratio.
And then if I change it slightly or I tweak it slightly that you then be able to look at
the cases and their facts and we're not use the listicle and say, but this is similar to
that one, and therefore the decision and the application should be why no versus
more similar to that one.
And therefore the principles is going to be applied in in X fashion.
So just the facts and how the court reached its conclusion based on those specific
fact, then there are other cases where the facts different slightly and because of that
that differentiation the court interpreted the application of the principles like so for a
start that that would be the approach Nova effect briefly Nova differentiating factors
between cases dealing with the same topic and then why and how the court got to
its conclusion is is that a reasonable explanation for now.
Are we happy with that?
Anybody, anybody, are we good?
Or do you have any further questions?
We're good with that.
Alright, perfect.
So as we go through today session, you'll you'll see as well practically what, what
what I mean by by differentiating and and how the code got to a different conclusion
because of the fact different, slightly alright, So what are we busy with?
We are busy with the issue or the element of conduct you will see when when you
read your court cases, the courts often refer to act now.
It's not necessarily wrong.
What what happens is the court do use these terms, act and conduct
interchangeably, but conduct is were more accurate one and and the reason being
that act refers to something positive.
Actually, doing something positive, conduct A could miss you.
Where does the word at does not really technically include an omission or negative
conduct, whereas if we if we use the word conduct, we can then bring, we can bring
in a word can mean both.
It can mean an omission or a Commission positive act and or a negative act or not
active.
But, but I'm not gonna be very strict about it if you use it interchangeably and use it
correctly, that's fine, but the actual element is conduct but but when you read the
cases you will see that that the court uses was when conduct and went act and and
then so on and so.
So the word act is conduct includes positive conduct and conduct.
Also improves and includes an omission, which means no product.
It's actually the opposite.
Act is doing something in animation.
Is not doing something as a general rule of thumb when it comes to an omission.
Liability only exists when there was a legal duty.
If there was a positive duty to act due to the legal framework and and we'll look at
that right at the end, there's about 8 instances which over the years have basically
clarified themselves where and when an omission can lead to criminal liability.
It is an exceptional circumstances.
It differs slightly from from delict.
It happens quite often in the law of delict, where an omission can lead to delictual
liability.
But but it doesn't happen that often in criminal law and and these ones which we're
gonna pay attention to.
Nana, I'll.
I'll sort of crystallized, uh.
Aspects where.
Criminal liability due to and omission is applicable alright.
The outcomes you can have a look at the outcomes.
They would just shift this away and please interrupt me if you don't understand
anything.
I can't always see who's hand is up and who's doing what, so please just just speak
up at anytime if you wish to do so.
So where are you outcomes?
What's the difference?
Is a thought punishable?
In other words, if there's no action, there's only a thought.
I'm only thinking about committing something.
Does that lead to criminal liability limitation functions?
Here we're going to have a look at which started with was voluntary and involuntary,
saying automatism, pathological and nonpathological unconsciousness.
We're gonna have a look at that today and then hopefully finish up the class with
with the issues are over the issue of omissions that we know.
We we started with last last time as well by saying not all acts are relevant for
criminal though, and I would if I drive my car down the highway at 120 kilometers an
hour, I drive home, I get home, I go to bed, I have a beer or two.
The laws not interested.
It is only when your actions start, according with the definitional elements of a crime,
that that criminal law cases involved or criminal liability becomes a potential.
In other words, instead of just driving, I'm driving under the influence.
I'm driving at excessive speed.
Uh, whilst driving I'm driving to a crowd of people and I heard ten of them and killed
two of them.
When I get home and not only have a beer or two, I get slightly intoxicated and I
assault my wine instead of just going to bed.
So it's when these actions start attracting unlawfulness or or a consequence which is
relevant for purposes of a definitional elements of a crime, only then.
Does the criminal law context come into play prior to that day to day running?
Not interested.
Only when the definitional elements are starting to be made in the my actions, then
criminal liability may ensue.
Thoughts.
Were a mere idea, do not attract criminal liability.
So if I'm thinking about committing a crime, I'm thinking about setting Parliament on
fire, but I don't actually do it.
I think about getting severely intoxicated and driving my GTR lesson at 500
kilometers an hour down a small little gravel Rd.
If I don't actually put my thoughts into action, if I don't go further than merely
thinking, then that does not attract criminal liability.
But look at attempt look at conspiracy and conspiracy and look at incitement.
Where words but words are more than thought.
Where?
Where that can actually attract criminal liability with but.
But it's more than thinking about things.
It's actually starting to talk.
It's actually starting to plan to conspire to commit murder.
It's more than merely thinking you're actually putting things into action to have your
thoughts become reality.
The other thing which is rather important but but simple and and that is what what
this slide deals with the conduct has to be human conduct.
In other words, it has to be a human being acting or omitting or or doing the
conduct if it's an animal, like in.
In this example, we're dealing with lions, and the lions killed a lot of people, and our
suddenly this was all thing about these lines are gonna be prosecuted and waste
forensic evidence and and all sorts.
No, it has to be human contact.
But be careful as well.
I don't know where that slide is that you just have a look.
Be careful of snake through the instrumentality of an animal.
In other words, what is that case?
It is making headlines currently where violate the dog.
How the bit for security guard that came on to the farm or whatever, I'm not exactly
sure of the exact fact, but there you are actually V using the animal to commit
something.
You're using the animal to act in a particular way, so you are willing that animal to
towards the consequence you are inciting that particular animal to essentially act on
your behalf and and in those instances we act, which is performed will dawn on you,
and that is not merely the act of an animal.
The the other thing when when we look at a missions later also if you take care of a
dangerous animal, you don't comply with regulations for keeping lines.
For example, you don't have a double fence.
It's not electrified.
It's not 10 or 12 feet high.
Then you not complying with the regulatory framework and because there is now an
emission, you are not keeping these things away from society, you're not keeping
them in a in a safe place where they cannot endanger people, then you liability will
flow from and omission.
But, but we'll get there.
So it has to be a human act.
That's fine, but remember, there's the possibility of you acting or committing
conduct through an animal by inciting or by not taking care.
Are there any questions up to now?
Anybody, any questions?
Any comments?
Alright, what is also very important thing and and this is basically what what the
patterns of the study unit is based on is this question or this aspect of Vee act having
to be voluntary.
What does that mean?
The ability of a capability of subjecting bodily movements to Willow intellect.
So all we're saying is this conduct that that is being that is being committed and has
to be under the mental and physical control of a person committing the contact, the
conduct has to be voluntary, capable of subjecting your body movements to your
will and your Internet.
What then happens and what causes?
Your conduct to be involuntary.
So firstly, what what are those aspects?
What are our circumstances?
We we may deem that conduct is actually involuntary.
And what of a consequences?

Gabby Coffee 18:53

They're gonna call.

Tjaart Viljoen 18:53

Does it mean that if if I am deemed to have acted involuntary, I cannot be held
criminally liable at all?

Gabby Coffee 18:54

This is the second floor.

Tjaart Viljoen 19:03

Does it mean under all circumstances that I will be acquitted and I will be said free?

Gabby Coffee 19:07

So I don't know.

Tjaart Viljoen 19:07

Is is that what it means?
Or are there certain circumstances depending on the exact nature as to why we
deem the conduct to be involuntary and if those circumstances or the background
facts different than the consequences are also different?

Gabby Coffee 19:18

What is it?
Yeah, I know that's not at the positive do this.

Tjaart Viljoen 19:29

Someone is someone is speaking, but you must just turn up your mic slightly, man.

Gabby Coffee 19:39

Both the same to the 48 of the 55 meter.

Tjaart Viljoen 19:46

48 and 45 metre Gabby is busy with an interesting conversation.
Gabby coffee.
What business are you doing on Van Debbie?
OK, baby, I see you goes mute.
Anybody, anybody with a comment?
That shouldn't just be me talking.
If we're not debating or having different views then then we're not having fun.
Nobody for now.
TV Tsotetsi 20:30
So could you repeat the question please?

Tjaart Viljoen 20:30

Alright.
Which question?
Which question should I repeat?

TV Tsotetsi 20:41
OK, I'm not sure if you asked based on E I'm an active.

Tjaart Viljoen 20:46

Just any any comment, any, any, anything for now any contributions that you wish to
make.

TV Tsotetsi 20:54
OK, so umm with regards to an add to that will be considered in voluntary.

Tjaart Viljoen 20:59

Yeah.

TV Tsotetsi 20:59
Would we say that a reflex and movement would be considered, UM, involuntary or?

Tjaart Viljoen 21:05

Umm.
Yeah.

TV Tsotetsi 21:11
Umm.

Tjaart Viljoen 21:12

Create create a picture, paint, paint us a picture about about refix.
What?
What do you specifically mean with reflex?

TV Tsotetsi 21:25
OK, let's say UM, you have someone hits you with.
Uh.
A ruler on your knee and then you kick forward something that falls over a balcony
on top of somebody's head and kills them.

Tjaart Viljoen 21:34

Umm.
You accidentally knocked over something that's standing on a balcony.
TV Tsotetsi 21:44
The.
Yes, somebody hits you with a ruler and then you kick.

Tjaart Viljoen 21:51

Yeah.

TV Tsotetsi 21:53
Then you're.
Obviously you have a reflex movement where you kick something over balcony and
then hit someone on the head.

Tjaart Viljoen 21:56

Hmm.
OK.
So you setting on your portraits of block of flats or whatever someone hits you with
a ruler, you reflect, you hit something standing on the porch, it falls over and falls on
someones head.
Had had the 2nd floor just below you and it kills that person.

TV Tsotetsi 22:20
Yes.

Tjaart Viljoen 22:21

OK.
What?
What do you think?

TV Tsotetsi 22:25
I think that that could be am action that will be would be considered involuntary.

Tjaart Viljoen 22:32

Umm.
And and in context it will be.
Non pathological and and therefore you will be acquitted.
I I I agree with you to to a certain extent that that reflex action could then exclude
conduct.
In other words, the first element and and if conduct is absent due to a non
pathological and consciousness which which we're gonna look at at now, now, then it
will lead to an acquittal.
I I am.
I'm just not that convinced is that will necessarily go to conduct.
I have a funny feeling where that particular action could be deemed voluntary, even
if reflect.
However, there are other elements that would still need to be present.
They all of them need to be which which other one do you think?
Maybe maybe more relevant here.
I'm I'm not even.
I'm not.
I'm not excluding the possibility of reaching a conclusion that we act is involuntary
because I I hear you immediate reflex reaction, but I would rather place it under
something else.
I would rather place it under fault.
Did you have the intention to kill the one upon whose head was ways fell?
You obviously did not have the direct intention now.
Are you with me?

TV Tsotetsi 24:23
Yes, Sir.

Tjaart Viljoen 24:25

So I I would maybe rather look at at fault being excluded.
You had no no intention and and I think in this particular circumstances when one
could look at it negligence, but plausibly that would also be absent and and then
your your acquittal, not necessarily based on an involuntary act but but rather on on
the lack of fault.
But it's an interesting argument.
Anybody else wishing to to to contribute, having having a different view or a saying
or the same view as as the student?
I I just think if if we look at at the examples which we're gonna have a look at further,
maybe maybe it will clarify itself out a bit more as well why I'm saying I am not so
sure we will.
This goes to voluntariness or involuntariness of the act.
But, but let's let's go with that.
Yes.
Can you go on?
Go ahead.
Running.

41466152 25:40
And so I wanted to ask in terms of that reflex movement example.
So we learned that, umm, that example of defensive automatism from the law of
delict.
And you said that.

Tjaart Viljoen 25:54

Umm.

41466152 25:56
It's not good enough of an instant to deem someone criminally liable.
Dems of like contact, so I just wanted to ask, is there like a difference between the
instances whereby someone can use to defend the automatism in the law of delict
from the law, from criminal law?

Tjaart Viljoen 26:14

You know.

Mbali Mmoni stopped transcription

Tjaart Viljoen 26:33

Then criminalized ability with the chances of being civilly liable, I think are are a bit
more, whereas if we we talking in in the realms of criminal law, the interpretation
might be a bit a bit straight, a bit more technical.

Mbali Mmoni started transcription

Tjaart Viljoen 26:50

We the consequence of of of conviction, will not necessarily follow as follow as easily
as as as we've the link.
But but do the same things because that is exactly what we're gonna have a look at.
Now do the same basic principles, play a role, and here we're gonna have a look at
and it comes in the exact same thing as you looked at in the automated but, but be
careful not to to transfer your delictual knowledge into the criminal law class and vice
versa.
They they are distinct differences and then sometimes not as distinct as one might
think.
They are commonalities, most definitely, but but put on your your when when we
dealt with the differences between criminal and delict initially when one is in a
criminal law class, put on your criminal hand when you are in the electoral class of
the glove delict class put on your delict tag.
And although they ask where they are, instances of sameness.
There they are.
There are differences as well.
You're good with that.
Tanya, you're good with that.

41466152 28:12
Yes, Sir.
Thank you.
If Sam, thank you.

Tjaart Viljoen 28:16

Alright, so let's maybe have a look and when when we come back to this this reflex
thing and and we we debate or we have a bit of a deeper discussion based on on but
more knowledge about about what automated automatism in in criminal law means
someone's hand is up but I can't see who's but you're welcome to go ahead.
Alright, so in the interim it's go on.
Otherwise, we're going to run after what excludes voluntary, so voluntary we know
what that is.
You need to be in control of your bodily movements via the actual actual being
capable of controlling it by mind or body.
What excludes voluntariness and I don't know if if you looked at this in delict as well,
I take it with you would have the issue of absolute force then.
So the person and the example here's a rather simple one.
Takes takes my hand.
I'm a lot smaller than he is.
And with my hand with my knife.
But I'm just cutting something with stab.
Someone else in that context, if this person is objectively capable of overpowering
me to Van extent and and stabbing why I can't prevent that from happening, I am
not in control of my bodily movement.
X is actually taken control of wet, which which is being done.
It's not me where is absolute force and then if you were in the last class we we
started speaking about this example of your autodrive BMW.
Where you put this vehicle designed for for purpose, you drive it on the highway or
to drive suddenly VIP computer system goes a wire and and instead of this thing
staying in its lane and actually drives into a crowd of people at at goes off the road
and presses the into in into people standing next to the road at a bus stop or
whatever the case may be.
And the question that we posed then is, yeah, let's autodrive, which malfunctioned.
And and if it does so that conduct of driving, driving negligently crashing into these
people, killing ten of them.
What?
Would this be an example of absolute force excluding the voluntariness of my pet
and and then we we can we can debate that and and and throw it around and play
around with it and then as we said when it comes to case law when when we look at
epilepsy now now the thing of antecedent liability in context because if we now
conclude that fine and fair this vehicle had its own mind I had no control over the
driving of the vehicle and therefore I did not act or I did not act voluntarily at least
there.
I should be acquitted when one also still needs to look at this issue of antecedent
liability, which we we Van changed with scenarios likely and we said this is the first
time with this is happened, there's no history of this vehicle malfunctioning and the
self drive taking over and and driving recklessly in context.
And if that were to be the case, then chances are we will be an acquittal.
But let's change it slightly and say BMW has led everybody internationally and in
South Africa.
Nova is an issue with the self drive.
You need to take this vehicle.
Put it on a lower paid track.
Take it to your nearest BMW garage and have this auto drive issue fixed and and this
is broadcast broadly and so on Facebook.
It's on Twitter.
It's on the news News 24 wherever S IPC channel and you still decide to drive this
vehicle in this particular fashion, you're going to a highway.
Put it on auto Drive and the same thing happens.
What now?
Are we going to say that we act was still involuntary because the vehicle system was
driving it?
I had absolutely no control, so therefore when can still say absolute force?
OK, fine, but the problem is the back is not going to stop there because there is this
issue of antecedent liability where the fact that you made the decision to drive and
put this thing on auto drive in the 1st place and in circumstances where you should
have known.
In other words, the reasonable BMW driver test contextually then you could still be
criminally liable, but based on E negligence, no.
And and and that is how I want you to think about these things.
And and that is where the case law becomes relatively important.
Nova effects.
But then there's a small change in factual circumstances.
How does that now affect the application of the principle that we are busy with?
Do you understand?
With, with with difference between the two, it's the first time that this is happened.
There's no history of the BMW taking over the system, defaulting as opposed to
there's a history of it, and you should reasonably have been aware of it and and
therefore liability based on negligence may follow.
Are are you happy with with that simple differentiation and do you get a better
picture as to where I'm going to when it comes to Caseville?
Does it make a bit more sense?
OK.
Khanyi see there's at least a farms up there.
Awesome.
Please anybody if you wish to interrupt you slow net when I'm sharing my screen. I
can't.
I can't see everything.
So you can just rudely interrupt.
I wouldn't see it as rude.
Relative force, on the other hand, you are still in control of your movements and we
example, but that we have here is someone holds a gun to my head and instructs me
to shoot someone else.
I stood, have we ability or capability to make the decision as to whether I'm going to
pull the trigger or not.
This one hasn't taken the gun my hand in.
It overpowered me completely and pulled the trigger on my behalf.
Sort of.
I'm in control of a gun.
I'm in control of it.
Never.
Next move I make.
I'm in control of whether I'm pulling the trigger or not, and in this particular context,
if I then do, then we refer to this more as relative force.
In other words, there's something outside influencing by decision by something from
the outside influencing my ability to make a particular decision, or influences.
That decision works from the outside and in that particular context.
If I went to pull the trigger I acted there was conduct on my side, but it's conduct
brought about by force relative force in this particular context, which could be
apologies, which could be excuse or which could be justified, but now we need to be
careful because here we are still going to say that there was conduct.
However, we are going to save it for conduct was influenced by outside forces
leading there to be relative force.
And you're acquittal in particular circumstances is not going to baby based
necessarily on an involuntary act.
It is going to be based on the justification of you acting and in this particular context
for justification of necessity.
But does necessity exclude conduct as an element?
No necessity goes to the issue of unlawfulness as the next element, so you're
acquittal is not going to be because you didn't act, you're acquittal is going to be
because you acted just to five, where is an excuse, an acceptable societal excuse for
you acting in this particular context.
So also be careful because even these latter cases of epilepsy and whatever, a lot of
them don't necessarily deal with the active exclusively.
It brings in another element and and a lot of them actually bring in the issue of
capacity.
Are you able to differentiate between right and wrong at the time and and the code
you actions or it excludes fault Man's rail or culpa intention and or negligence, while
in a lot of circumstances negligence follows?
It excludes intent.
Alright, now we get to this issue of automakers.
This was reflex action that that, that you guys are are referring to.
The act is involuntary.
But those bit of crystallized over the years and and in case law and and this reflex,
why not?
Not really in criminal or context, but those would have crystallized in in criminal law.
Context is some nebulous M which is basically sleepwalking, so you are you stabbing
someone to death whilst sleepworld.
Ohh, your ACT is involuntary due to you having an epileptic fit.
You're driving down the road.
You have an epileptic foot.
You have no control over your actions at the time your view of the road you're
driving to a bus stop.
You killed eight people.
What?
What is going to happen then?
Is your ex going to be involuntary due to automatism and avoids liability excluded
because you did not act voluntarily and under which circumstances will that happen
and what will be the consequences?
Is it gonna be an acquittal?
Is it going to be what X while completely unconscious and acts while asleep now?
If if we look at these things, these are basically all referring to unconscious act.
In other words, the person at the time of committing this particular conduct is
actually unconscious.
Prefer logical loss of consciousness due to insanity.
On the other hand, we have we have automatism, which is, say automatism, which is
non pathological loss of conscious.
And and we'll we'll deal with that.
Well, one is very you basically insane and it goes to the issue of capacity here.
It's on involuntary due to something that happens immediately, but not due to
pathological reasons but but I just want you to get back to first and an ash referring
to to the lake class.
If we look at these things.
Do we think, firstly, that that was reflex action?
Full squeeky within.
These examples, unconscious act due to at the time of acting at essentially says I did
not know what I was doing.
I was not in control.
I was not mentally in control of what I was doing.
Do we?
Do we think that that was pure reflex action falls squarely within?
Varell of what we're dealing with here.
What?
What do you think?
Is a reflex action an unconscious action?
I think maybe we should ask a question in that way.
Kanye, what do you think?

41466152 41:46
Umm so.
But I'm conscious, Sir.
I feel like it's more or less unconscious because we're not necessarily just, but it's it.

Tjaart Viljoen 41:57

Umm.

41466152 41:59
There's no control within that movement because.

Tjaart Viljoen 42:00

Yeah, there's at least no control and and that is a similarity now and it's not maybe
the mental aspect of it that that is so similar, but it's more of the physical aspect
which is similar.
41466152 42:07
Yes, Sir.

Tjaart Viljoen 42:15

Now you're not in control of what you're doing, because what you're doing happens
automatically, but it lies more than a physical level than it lies on a mental level.

41466152 42:30
Is the.

Tjaart Viljoen 42:31

OK.
And and whether that physical and mental differentiation necessarily causes uh
liability excluded on a different thing.
Not necessarily.
But but it is quite interesting.
My my feeling is just I I think it's probably going to be excluded on the basis of fault
because of the unconscious thing that somnambulism and epilepsy and whatever
has.
But, but that's just my thinking.
And and I'm open.
And if you debate differently and your substantiate differently and in a test or in the
exam, obviously you you will get credit for that because it's a Gray ish area now.
But if you can substantiate why, then you will get all the credit.
You can get 10 out of 10 for arguing in the One Direction, and we're saying for
arguing in the different direction.
What?
What is important though, is the question is not if X.
If a perpetrator of a person committing the conduct can remember or not when
when you are you practicing and and the client comes and he says.
But I can't remember anything.
I can't remember stabbing my girlfriend.
I can't remember stabbing my cherry.
I can't remember.
Pulling the trigger of a gun and killing my friend or whatever.
It's not about with excon, remember or not remember, because if it was merely a
question of not remembering, everybody's gonna say I can't remember.
And therefore I need to be a good it's it's a lot more technical than that in in both
instances, in automating based on involuntary conduct, which is with somnambulism
epilepsy and all of that.
And when it comes to unconscious behaviour, because the person is is insane, they
needs to be technical.
Supporting evidence that that shows that that creates a bit of a background as to
what exactly happened here.
If a person merely comes to court and he says I can't remember and and with state
can lead prima facie evidence as to guilt versus what happened versus what
happened and and you're accused remains silent in that particular context, there's no
technical evidence supporting this epileptic fit.
There is no evidence supporting the conclusion of some nebulous then your client's
not going to get away with it now, and and it goes further than than the mere logic
behind it that we needs to be evidentiary material.
Supporting your defense, supporting this conclusion.
It also goes to the issues of onus, and this is quite important, but I'm getting a bit
unstructured now.
Let's let's maybe put it back.
Let's just put it back slightly now, otherwise we're gonna be in trouble and I'm going
to confuse you, alright?
So we know what forces we know, absolute force, we know relative force.
We happy with that.
It excludes the voluntariness of the ACT and and and therefore inequitable.
Follow here you did not act at all here, even though you acted, you acted in a
manner that could be justified.
Justification goes to unlawfulness.
Unlawfulness will be excluded in a an equitable follow up based on unlawfulness
overlap whereof when we move on to automatism and we got off track by talking
about this reflex action, but it's OK.
Let's just pull the structure back slightly.
When one talks about automatism excluding voluntary action or causing involuntary
conduct, there are two.
Two different.
Approaches or different aspects to automated.
The one is involuntary conduct and the other one is unconscious behaviour due to
mental illness.
So the one the person is normally saying there's nothing wrong with this person.
But in committing the conduct under specific circumstances, he acted in warranty X is
mentally sane, yet momentarily behaves involuntarily.
Epilepsy somnambulism.
Sleepwalking.
Dreaming having a nightmare?
All of us.
There's normally nothing wrong with this person, but when the conduct was
committed at that specific moment in time, where is this issue of or potential of
involuntary anism due to one of these aspects?
Unconscious behaviour due to mental illness on the other side exist unconscious or
excess unconscious contract is attributed or attributed tribute to build.
What difficult word to a pathological issue to a mental illness, or what we basically
just saying here is this is a defense of criminal insanity.
Now if we look back.
To to our general discussion on on conduct and fault and unlawfulness, whatever
vacation, the moment we talking about a defence of mental insanity or criminal
insanity, are we actually focusing on the act of the conduct or is there another
element more important here?
Then you recall, have you started preparing for your for your test on Monday.
If we talk about criminal capacity.
Which element of of a crime or criminal liability are we talking about?
We are talking about fault.
Yes, Kanye, what do you think?
Granny, go ahead.

41466152 49:13
But.
I don't know.
Isn't it talk ability?

Tjaart Viljoen 49:21

We talking about culpability now we cope.
We're talking about man's Rea.
We are talking about fault and under fault.
The first issue that we posed various does the person have the criminal capacity to
be held liable?
Can you differentiate between right and wrong and Kenny accord his actions in
accordance with that appreciation?
So essentially when we are dealing with the second one unconscious behaviour,
pathological unconsciousness, what was Preston is raising is a defense of criminal
insanity, criminal insanity, even though it leads to involuntary conduct, it excludes
fault as an element of the crime.
It excludes intention at least, and if he's mentally insane, completely and
comprehensively, it will include exclude any form of thought.
So an acquittal will fall.
However, let's be careful now as well.
Let's just take these things step four, step so we differentiate between saying
automatism and insane automatism.
Nonpathological loss of unconsciousness as opposed to pathological pathological
due to insanity, nonpathological due to one of these other things happening.
Epilepsy, some nebulous M, whatever the case may be, normally sane.
Normally, saying people acting involuntary due to a particular circumstances in this
particular context for person is insane, lacks capacity.
Let's criminal capacity, therefore, cannot be held liable due to the lack of fault.
What is also important then, if we are dealing with involuntary conduct, saying
automatism, if the factual circumstances, we evidentially material leads to that
conclusion and the person is acquitted, he is a free person, completely, totally
acquitted, doesn't go to jail, no consequence whatsoever.
When a person is acquitted and remember he will be acquitted based upon criminal
lack of criminal capacity.
But does that mean that this person is a free person?
No, it does not.
If one looks at section 787980 of a Criminal Procedure Act, that person will be
admitted to a mental institution.
So involuntary automatism.
Sane automatism acquittal.
Insane automatism acquitted.
However, the consequences are admission to a state institution and weighs also
another difference here, which is also important.
The one deals with all that deals with the issue of owners.
If a person, a person's defense is sane automatism or non pathological loss of
consciousness, the onus is still on the state to prove that we act was voluntary.
Are you with me?
So we owners remains with a stead.
This is one of the only instances in law where the onus actually shift here.
The accused needs to present evidence.
Of involuntariness due to epilepsy or somnambulism or whatever the case may be,
but we ultimate owners to show that we act was voluntary, still remains on the state,
so it's not for the accused to prove beyond reasonable doubt that we act wise
invariant.
It is for the state to prove beyond reasonable doubt that it was violent in this context,
where a person, persons defense is lack of criminal capacity, the onus actually shifts
onto the accused to prove beyond reasonable doubt that he is insane.
Are are you happy with this?
With this shift of owners, when it comes to insanity, we owners, we actual ultimate
owners of proof rests on the accused to show that he is insane.
On the other hand, sane automatism.
I'm normally in control of my actions, but in this particular context, due to whatever
obvious examples I acted involuntary at the particular time with states still needs to
prove that it works.
Why don't you?
Are we happy with that distinction?
Are we happy with a distinction if we, if we talk about the law of evidence more
strictly, which you'll have next year, we we dealing with a differentiation here to San
onus of proof and evidentiary burden.
On the other hand, that is essentially the differentiating factor.
Which state in 99.9% of the cases has the onus to prove guilt beyond reasonable
doubt?
The accused just needs to lead evidence which is reasonably possibly true.
Where is his evidential burden?
Evidence that creates doubt is the evidentiary brought it.
Whereas when it comes to issues of onus, on the other hand, and and criminal
capacity on the other hand, if if the accused says is insane, he has to prove that he is
insane.
So we own this shift.
Are we good with that?
Because it might be it, it it's important for practical purposes and it might be
important for for the test as well.
I wouldn't know but, but it is a very important differentiation that we be able to
differentiate.
But between these two things.
No questions, no comments.
Are we good? Alright.
So have a look nice.
Look at that schematic.
It gives you a very good idea as to the differentiation.
Where does we own this line and what we ultimate consequences are?
And that's just putting that schematic arting words onus is on the state to prove it, to
help with voluntary.
That's normal.
What does assist with state when someone comes with an involuntary act or sane
automatism is there is a natural inference I don't wanna say it's a presumption
because that might be taking it too far.
There's a natural inference that unless there are exceptional circumstances, is saying
person X voluntary.
So the court wills will sort of assumed to some extent that that a person acts
voluntarily unless there is evidence that shows exceptional circumstances.
The consequences if we act is found to be the conduct is found to be involuntary free
person, acquitted, go home as opposed to this one onus is on the accused to prove
insanity.
Criminal capacity is lacking.
If the court finds that yes, criminal capacity was lacking or the act was when
involuntary due to pathological issues, you will be acquitted not guilty.
But the consequences will not be go home.
You will be admitted to a psychiatric hospital.
Antecedent liability is what we we touched on now, but let's get back to that.
When when we understand there's a good better.
Our racism keys at 1959 decision.
The stabbing took place whilst we accused had an epileptic foot.
He was working.
He was cutting me.
He had an epileptic fit.
He stabbed his sister.
I think in the ribs and she passed away as a result of that.
He was eventually acquitted because the court said there was no history.
Of Mr Keyser having epilepsy, there was no clear and unequivocal warning when he
suffers from these things.
We will no warning signs for him to be careful because he has epileptic fits and this
could lead to to hurting someone or killing someone or driving in a way that would
be negligent and because of that because he was cannot be deemed to have been
aware.
Of responsibility of having an epileptic fit and therefore stabbing someone he was in
actual fact acquitted.
So if one looks it was antecedent liability, let's maybe look at Victor first, reckless and
negligent driving.
In this context, Mr Victor or Miss Victor, I can't remember, had a history of seizures
and other words.
There was a clear and unequivocal medical history that she suffers from epileptic fits
rather often or frequently.
However, she Van still decided that I am going to drive.
Well, knowing that an epileptic fit could occur at any time, and if very so if there is
was medical evidence showing that there was no warning of any sort, but possibility
of acquittal on involuntary act could follow and and to anticipant liability won't
follow, because this would be absent.
Her conscience or voluntary actions in the case of victim this one.
So it wasn't her.
A conscious of voluntary action starts when she starts to drive a car whilst conscious
and otherwise, whilst knowing that there is the possibility of her having an epileptic
fit, and if those of a circumstances if those values, the evidentiary material supporting
that conclusion, then there's going to be negligence and that's why I'm saying when
one has to be careful when looking at these things, does it merely make the act
involuntary or does it actually affect some other element?
And in this one, her fault, her negligence is deemed to have started when she started
driving well, knowing that these consequences could follow.
So what is the difference between the two?
No history, no warning, no nothing.
There's just happened out of the blue, established as the envelopes killed her
acquittal as opposed to here, history of seizures and the negligence went over
voluntariness of the actions starting when the decision was made to drive.
Are you are you happy with that?
And where I put it out for you guys as well, but difference between squint, Vanko and
Victor, it was the same sort of thing, but while there was a history, the other one,
there was no history.
And and that proved to be rather conclusive.
This one stabs complainant with a knife while dreaming service is fast asleep.
There's no consciousness.
There's no control, mentally or physically, and and if you then happen to kill
someone in those circumstances, chances are the voluntariness of your act is going
to be executed.
No voluntary act, so this is the question of sleepwalking or dreaming, or having a
nightmare.
And in that particular state in that unconscious state, having absolutely no control of
what you're doing excludes involuntariness here.
Kill the person shortly after the dream, so there was a dream first person actually
woke up.
Now consciousness returned the question of of acting unconsciously, involuntary
dissipated in content.
So what happened here was ohh I had a dream and when I woke up and I was very
upset still about the dream and I killed my whoever and and the question where is
are you nice to acting unconsciously?
Are you not in control of your mental state?
Are you not in control of your physical state, or does the fact that you actually woke
up change this issue of voluntary or involuntary Ness?
This one deals with intoxication, and that's what I said on on Friday.
Don't go in and drink over the weekend and drive into a lot of people thinking that
you are going to be acquitted now because that is what what this decision seems to
bring about.
And it seems to say that even intoxication.
Can easily lead to you acting involuntary, but if one reads this case very specifically
and and there is still a lot of criticism about about this particular decision which has
proven to be valid and not read, what what they thought would happen after the
case was decided is that they would now be a lot of instances where people call
upon intoxication as a defense because according to visit it has now become
unequivocally possible.
But it's only in exceptional cases because of excessive consumption of alcohol and
there's another qualification that we're gonna look at now.
That they could be lack of criminal capacity and and now once again we need to be
careful because the moment we are talking about the lack of capacity, we are actually
in the realm of fault and no longer in involuntary action but and and that one also
supports that cannot differentiate between doing right and wrong.
So in this instance we had a party of the work he got into his vehicle and he drove
into a group of people.
The court Van essentially found in this particular incident, he was so intoxicated that
we intoxication actually excluded the intent to kill one of the people, one of the
bystanders was killed, and I think four or five were injured.
If I remember correctly now, the court argued in this context that he was so
intoxicated, very lack criminal capacity, he could not differentiate between right and
wrong nor accord.
He is actually and and he was.
Acquitted.
Ah, of most.
But he was convicted.
Not of attempted murder, because that goes to intent, and the court said intent was
excluded.
He was so intoxicated and excluded intent.
Therefore, murder was not a possibility, because that is an intent crime.
That's Pacific intent.
We specific intent to kill attempted murder could also not be, could not be
convicted, because that also takes me specific intent to kill.
However, you will not success in killing.
He was then convicted of culpable homicide, which dealt with the issue of negative
are you guys still with me?
I'm talking way too much and you are talking way too little today.
There's no participation.
You just waiting to go and listen to the recording afterwards.
Alright, in any event, go and have a look when at the differentiation between these
cases that we dealt with.
What were the differences in fact?
And because of those small differences in circumstances, the court applied the rules
of law differently and reached a different conclusion.
Last thing we need to have a quick look at.
Ohh yeah, and and there's another qualification.
So it is possible that he toxication can lead to exclusion of intent or the exclusion of
criminal capacity which could lead to an acquittal, however, is a piece of legislation
gonna have a look at that section one of act one of 1988 in those above
circumstances where your lack of appreciation may be executed or your capacity may
be excluded due to substance use or abuse, you may then not be convicted of
murder, for example, but you are Van guilty of a statutory offence specifically
created.
You are then guilty of this particular crime, which is a statutory crime.
Specifically created and.
Just by the nature of it, the penalty imposed when you are found guilty of this
statutory crime is exactly the same as you could have received when you were found
guilty of murder or culpable homicide or attempted murder or whatever.
So this just basically said because of of societies thinking against alcohol and using
alcohol as an excuse and escaping criminal liability due to intoxication, society
frowned upon that and enable this particular legislative enactment came into play.
And you're gonna suffer the same consequence.
You're not gonna be guilty of murder, but you may well be sentenced to 15 years in
prison.
Emission.
We know what an emission is when it's better legal duty when the body mores of
society demands that you act happens in exceptional circumstances and and these
are the eight that have crystallized over the years.
If there's a statute like the South African Revenue Services Act, if you don't do your
tax return, you are guilty of an offense.
There's a common law admission that that can be committed in brackets quite easily.
If you're aware of someone committing treason or planning to, you need to disclose
that to the police.
If you don't, you are guilty of that particular common law.
Crime court orders relatively easy, but court orders you to pay maintenance.
There's a positive legal duty or obligation on you to pay maintenance.
If you don't, you are Van guilty of a particular crime under the Maintenance Act
agreement accepts right liability or responsibility for a dangerous substance or
weapon.
That's you breeding with lions and you don't keep him in a cage.
Protective relationship the children's active Child Justice Act, or whatever.
The parents have a duty to take care of it.
Children, if they don't do that, they could be criminal liability based on hand
omission.
Previous positive act example explains a quite easily you light a fire in a dry area and
instead of putting it out, you leave it and that fire spread burning down property
etcetera.
You could be held criminally liable based on and omission.
Versus official capacity, the police mostly having a responsibility to act and and we've
dealt with that in previous classes where we said the police officers seeing this is all
taking place.
Yeah, he does not interview.
Are we good?
Are we happy?
Any questions on the issue of conduct?
What excludes conduct, absolute force, relative force automatism, the differentiation
between the two of the practical differences as it relates to consequence and owners,
those epilepsies somnambulism nightmare examples that have crystallized in cases?
Why different conclusions?
Because the facts were slightly different.
Focus on those differences in in the particular facts and be able to differentiate why
liability followed.
Investment.
Why did it not follow in that one and then be able to apply that to a completely
different scenario that may be created?
Just apply for principles.
Alright, I see the numbers are dwindling.
You probably have another class then. Alright.
Any questions from anybody?
Any comments?
Granny, are you good?
Kanye left Mbali.
Alright, OK, ladies and gentlemen, thank you.
This this was a bit quick because I had to finish it for purposes of you being able to
prepare for your test.
Please on Thursday afternoon, if you have any questions about conduct, let's start
with that.
Any questions?
Any comments?
Anything which is not clear so that you are you can be well prepared for your test or
for your test moment.
Alright, my apologies for going quickly, but that was out of necessity.
I shall see you on Thursday.
Stay safe.
Study well.
Enjoy.
Bye bye.

Tjaart Viljoen stopped transcription