Learning Unit 8 transcript

This lesson is located in the link below:

https://youtu.be/nxOyDvfSmQI

Good day students! Welcome once again to a lecture on the General Principles of Criminal Law. Today,
we will be discussing Learning Unit 8, which deals with the specific defences excluding criminal
capacity.

Looking at the work we have already done, we can safely say that we are halfway through the Study
Guide. We have already completed Introductory Topics and the Principle of Legality and are currently
still busy with Criminal Liability. We have completed the first three of the requirements for criminal
liability, namely the act (or conduct) (in Learning Unit 3), and definitional elements (which included
causation) (in Learning Unit 4), and unlawfulness (in Learning Unit 5) where we focused on the ground
of justification of private defence, and a further chapter on unlawfulness (in Learning unit 6) where
the remainder of the grounds of justification, namely necessity, consent, presumed consent,
obedience to orders, triviality and the right of chastisement (which was declared unconstitutional)
were considered.

We were reminded that even if a person has committed an act (or conduct) (requirement no 1) that
complies with the definitional elements (requirement no 2) and that is unlawful (requirement no 3),
it is still not enough to hold that person criminally liable. The last requirement for criminal liability
must also be satisfied: X's conduct must be accompanied by culpability (requirement no 4). This
means, broadly speaking, that there must be grounds upon which, in the eyes of the law, X can be
blamed for his or her conduct. This will be the case if X has committed the unlawful act in a
blameworthy state of mind. Culpability also looks at the perpetrator as an individual, and the question
that is asked is whether this particular person – considering X’s personal characteristics, aptitudes,
gifts, shortcomings and mental abilities, as well as his or her knowledge – can be blamed for his or her
commission of the unlawful act.
We saw that culpability or its Latin term mens rea has two legs: (1) criminal capacity which refers to
the person's mental ability, AND (2) intention OR negligence – X must have acted either with intent in
committing the crime or negligently. We also discussed the principle of contemporaneity, which holds
that the culpability and the unlawful act must be contemporaneous (happen at the same time). This
means that in order for a crime to have been committed by X, there must have been culpability on the
part of X at the very moment when the unlawful act was committed. To illustrate the principle of
contemporaneity, we briefly discussed the case of Masilela 1968 (2) SA 558 (A), where the court
rejected X’s claim that his conduct consisted of two separate acts (the first act done with the intent to
murder, while the second act where Y actually died, there was no intent to murder), but of a single
course of conduct. The court held that X was indeed guilty of murder.

You were also introduced to the first leg of culpability, i.e., criminal capacity. A person is endowed
with criminal capacity if he has the mental ability to (1) appreciate the wrongfulness of his act or
omission (for example, X must know that speeding is against the law and therefore wrong) AND (2)
act in accordance with such an appreciation of the wrongfulness of his act or omission (for example,
while knowing that speeding is wrong, X drives his car in excess of the speed limit and crashes into a
streetlamp). These two psychological legs of the test for criminal capacity are also known as (1) the
cognitive function, that is, the ability to distinguish between right and wrong, lawful or unlawful, that
is, his insight, and (2) the conative function, that is, a person’s ability to conduct himself in accordance
with his insight into right and wrong. This function relates to a person's ability to control his behaviour
in accordance with his insights – that is, exercise self-control. If one (or both) of these abilities is
lacking, the person concerned lacks criminal capacity, and cannot be held criminally responsible for
an unlawful act that he has committed while he lacked such ability.
In the previous lecture, we already mentioned the defences which exclude criminal capacity, and
discussed the general defence excluding criminal capacity, namely non-pathological criminal
incapacity (NPCI). In Learning Unit 8 today, we will be focussing on the specific defences excluding
criminal capacity, which are mental illness and youthful age. Under the defence of mental illness, we
will examine the two-legged test of mental illness as found in the Criminal Procedure Act section 78(1)
that consists of a pathological leg as well as a psychological leg, the onus of proof and verdict in cases
of mental illness.

Criminal capacity may be excluded by the mental illness or abnormality of the accused (X). The defence
of mental illness was previously known as the defence of "insanity“, but this term has fallen into
disfavour. Mental illness as a defence in criminal law has been governed by legislation, more
particularly by section 78 of the Criminal Procedure Act 51 of 1977 (CPA). The test to determine the
criminal capacity of mentally abnormal persons as contained in section 78(1) of the CPA has two legs:
a pathological leg (or biological ‘illness’ leg) and a psychological leg (or mental abilities leg). We first
consider the first leg of the test in section 78(1), namely that at the time of the commission of the act,
X must have been suffering from a mental illness or mental defect, i.e., “a person who commits an act
or makes an omission which constitutes an offence and who at the time of such commission or
omission suffers from a mental illness or mental defect”. This requirement means the following: As
already stated in Learning Unit 3 where insane automatism was discussed, the court must determine
whether X was suffering from a mental illness or mental defect with the aid of expert evidence given
by psychiatrists. The psychiatrists will examine X while she is detained in a psychiatric hospital, or any
other place designated by the court, and then report their findings to the court. The duration of the
mental illness is not relevant. It may be of either a permanent or a temporary nature. If it was of a
temporary nature, it must, of course, have been present at the time of the unlawful act. If X was
mentally ill before and after the act, but she committed it at a time when she happened to be sane,
she does not lack criminal capacity. Such a lucid interval between periods of mental illness is referred
to in legal terminology as a lucidum intervallum ("lucid interval"). It is not necessary to prove that a
mental illness originated in X's mind: the defence may be successful even if the origin of the illness
was organic (i.e., stemmed from X's physical organs, as opposed to her mind). Intoxication in itself
does not constitute mental illness; however, the chronic abuse and subsequent withdrawal of liquor
can lead to a recognised mental illness known as delirium tremens. A "mental defect" can be
distinguished from a "mental illness" in that it is characterised by an abnormally low intellect, which
is usually already evident at an early stage and is of a permanent nature. "Mental illness", on the other
hand, usually manifests later in life and is not necessarily of a permanent nature.

The question is however not only whether a person was mentally ill, but also whether her mental
disease resulted in the impairment of certain mental abilities. This brings us to the second leg of the
test for criminal incapacity, the psychological test, which is subdivided into two parts, and operate in
the alternative. This test is similar to the concept of criminal capacity in the previous study unit. A
person must have the ability to distinguish between right and wrong (cognitive mental function), and
the ability to act in accordance with such an insight (conative mental function). However, where in the
test for criminal capacity a person must have both functions in order to be held criminally liable, to
test mental illness, a person may have only one of the two functions, i.e., either cognitive or conative.
This is well illustrated by the decision in Kavin 1978 (2) SA 731 (W). X shot and killed his wife and two
children and also attempted to kill a third child. He was in financial difficulty and his apparent motive
was to reunite his family, whom he dearly loved, in heaven. The panel of psychiatrists concluded that
although it could not be said that X had been unable to appreciate the wrongfulness of his conduct,
he had been unable, on account of his mental illness, to act in accordance with that appreciation at
the time of the commission of the murders. The evidence showed, however, that he had not acted in
the heat-of-the-moment, impulsive act, but according to a definite plan. The court held that the
provisions of section 78(1) were wider than the 'irresistible impulse test', that they were wide enough
to cover a case such as this, where there had been a gradual disintegration of his personality through
mental illness, and that X's defence of mental illness should therefore succeed.
Section 78(1A) of the CPA provides that every person is presumed not to suffer from a mental illness
or mental defect until the contrary is proved on a balance of probabilities. According to section 78(1B),
the burden of proving insanity rests on the party raising the issue. This means that if the accused raises
the defence of mental illness, the burden of proving that she suffered from mental illness at the time
of the commission of the unlawful act rests upon her. If the state (prosecution) raises the issue, the
burden of proof rests on the state. If the defence of mental illness is successful, the court must find X
not guilty by reason of mental illness or mental defect. The court then has a discretion to issue any
one of the following orders: (1) that X be admitted to, and detained in, an institution stated in the
order and treated as if she were an involuntary mental-health-care user contemplated in section 37
of the Mental Health Care Act 17 of 2002 (2) that X be released subject to such conditions as the court
considers appropriate (3) that X be released unconditionally or (4) if X has been charged with murder,
culpable homicide, rape or another charge involving serious violence, or if the court considers it
necessary in the public interest, the court may direct that X be detained in a psychiatric hospital.

CPA section 78(7) provides that if the court finds that X, at the time of the commission of the act, was
criminally responsible for the act, but that her capacity to appreciate its wrongfulness was diminished
by reason of mental illness or mental defect, the court may take the fact of such diminished
responsibility into account when sentencing her. She will thus be convicted of the crime, but because
her ability to resist temptation is less than that of a normal person, this psychological factor may be
taken into account and may then warrant the imposition of a less severe punishment. A court cannot
try a mentally abnormal person. Such a person is incapable not only of giving evidence properly, but
also of either defending himself or of properly instructing his legal representative. This is the position
no matter what his mental condition was at the time of the commission of the alleged crime. See
Snyman 172 for the procedure to be followed if it is alleged that because of mental illness X lacks the
capacity to understand the proceedings and can therefore not be tried.

We move on to the next defence which exclude criminal capacity, that of youth or youthful age. The
Child Justice Act 75 of 2008 deals with youth as a factor that may exclude criminal capacity. The Child
Justice Amendment Act 28 of 2019 (which took effect on 19 August 2022) has, however, amended the
regulations regarding the minimum age for criminal capacity of criminal intent in children from 10
years to 12 years. We will very briefly discuss the relevant provisions of the Act that you must study
for the examination. Section 7 provides: A child who commits an offence while under the age of 12
years does not have criminal capacity and cannot be prosecuted for that offence (s 7(1)). A child who
is 12 years or older but under the age of 14 years and who commits an offence is presumed to lack
criminal capacity, unless the State proves that he or she has criminal capacity (s 7(2)). Section 11(1) of
the Act provides: The State must prove beyond reasonable doubt the capacity of a child who is 12
years or older but under the age of 14 to appreciate the difference between right and wrong at the
time of the commission of an alleged offence and to act in accordance with that appreciation. And
that is it for this week!
These lecture notes are merely supplementary to your prescribed material of which your study guide
remains the primary source from which to study! Remember that you are always welcome to seek our
assistance if you encounter any difficulties with the module content.

It was great having you here for the lecture! Have a good week studying, see you next week!