Theories of Punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, is a basic yet

inconsiderate theory of inflicting a penal sentence over a perpetrator. It is based on
the doctrine of Lex talionis, which means ‘an eye for an eye’. Two doctrines are
related to this theory: The Doctrine of Societal Personification and the Doctrine of
Correctional Vengeance. On the Deterrent Theory of Punishment, the term “Deter”
means to abstain from doing any wrongful act. The main aim of this theory is to
“deter” (to prevent) the criminals from attempting any crime or repeating the same
crime in future.

According to this theory, if someone commits any crime and he/she is punished by
severe punishment, then the people of the society will be or may be aware of the
severe punishments for certain kinds of crimes and because of this fear in the minds
of the people of the society, the people may stop from committing any kind of crime
or wrongful act. The preventive theory of punishment seeks to prevent prospective
crimes by disabling the criminals. Under this theory, the criminals are punished by
death sentence or life imprisonment etc. The utilitarian hypothesis of discipline tries
to rebuff guilty parties to debilitate, or “hinder,” future bad behavior. The Reformative
Theory is a hypothesis that the object of discipline ought to be the change of the
crook, through the strategy for individualization.

The theory of punishment being followed in Namibia to change the crooks as

opposed to rebuffing them is not that compelling in avoidance of the event of
violations in Namibia. The essential idea of law isn’t to be static but to be dynamic in
nature. The Hypothesis of Discipline is a theory of punishment that aims to make
criminals languish over their bad behaviour. It is customized and rotates around the
mental outlet of the person in question or his family. The primary reason for
discipline is parole and probation, which have been acknowledged as current
procedures of improving guilty parties all around the globe.

Compensation is the main look out in the law of crimes, and the victims in a crime
can be compensated on two grounds: (1) A criminal who had inflicted an injury
against the person (or group of persons) or the property must be compensated for
the loss caused that has caused the victim, and (2) The State that has failed to
provide safety towards its citizens must receive compensation for the loss caused.
Incapacitation is the theory of punishment that involves removing the person from
society, either temporarily or permanently, or by some other method, which restricts
him due to physical inability. It is reserved only for those people who are either
sentenced to prison or life imprisonment, yet it also includes things like being
supervised by the departments within the community, like probation and parole.

Principles of Criminal Liability

Criminal liability

Based on the principle of “actus non facit reum nisi mens sit rea”, meaning that an
act must be accompanied by a wrongful intention in order to be held criminally liable.

Elements of Criminal Liability

This includes the performance of an act (actus reus), that act is unlawful
(unlawfulness), that act causes the crime (causation), and that act is accompanied
with a guilty mind (mens rea).

In order to fasten criminal liability, the intention must be given effect to by an act, and
the conduct of the accused person must satisfy the element of unlawfulness.
Criminal liability is the state's responsibility to prove that an accused person has
voluntarily performed an unlawful act, accompanied by a criminal capacity and guilty
mind. The principle of common purpose emerged in Namibian law from the English
Law, after the English occupied the Cape and various other territories belonging to
South Africa.

It is present when two or more persons having a common purpose to commit a

crime, act together in order to achieve that purpose, and the conduct of each of them
in the execution of that purpose is imputed to the others. Common purpose is not
dependent upon a prior agreement or conspiracy but may be inferred from the
circumstances of the case where the evidence shows active association with the
common purpose.

The principle of common purpose

Emerged in Namibian law from the English Law, after the English occupied the Cape
and various other territories belonging to South Africa. It is present when two or more
persons having a common purpose to commit a crime act together in order to
achieve that purpose, and the conduct of each of them in the execution of that
purpose is imputed to the others. The Courts have held that in order to apply the
principle of common purpose, the Court must be satisfied beyond reasonable doubt
that a prior agreement existed and was proved, and that the accused person was
privy to it. In Namibia, the principle of common purpose is used almost exclusively to
cases of culpable homicide and murder since it helps in resolving an important
factual question of proof of causation wherein multiple persons are involved.

EXAMPLE

Assume there occurs a murder in which the victim is beaten to death with bludgeons
by five persons. In such a case, it is simply impossible to ascertain who delivered the
deadly blow that resulted in the victim's death. Obviously, in this scenario, causality
cannot be proven beyond a reasonable doubt. Because causality cannot be proven,
all five perpetrators should be found not guilty.

But who is to blame for the killing of an innocent victim?

In instances like this, the idea of common aim is applied to all offenders collectively.
The inevitable inference is that the goal of this concept is to triumph over the unfair
effect of allowing the perpetrators to escape accountability.
Principle of attempt

In Namibia, a person may be charged with a crime even if they just attempt to
commit one. When an attempt is complete or incomplete, we can understand the
attempt principle in each of these situations. However, in the second case, the Court
would carefully look into the accused's activities and determine whether they
constituted an attempt. In the first case, the accused's acts were not extensively
examined. The case of X, an accused murderer who had meant to kill victim B,
demonstrates that murder can be charged even when there was no actual criminal
ac

Principle of Conspiracy

Conspiracy is restricted to agreements to commit a riotous crime, such as coups

and/or treason.

Principle of abetment

The term "incitement" or "instigation" is used in place of the word "abettement" in

Namibian criminal law. Incitement is an impure crime that carries a prison sentence
for the simple fact of their conspiracy. If the incitee decides not to commit the crime,
the inciter may be charged as a co-defendant or accomplice. African song lyrics that
urge people to "shoot the Boers/farmers; they are rapists and robbers" are cited as
evidence in South Africa's Boer Genocide debate as calls for the mass murder of the
Boers.

Principle of mens rea

Namibian criminal law is based on the principle that an act is unlawful unless it is
accompanied by a guilty mind. To fasten liability, there must be fault, either intention
(dolus) or negligence (cupla). A necessary requirement of fault is that the fault must
exist through every element of the crime with which the accused has been charged
with. If at any stage of completing an element of the crime, fault is absent, then there
can be no fault. Therefore, the accused person must know that they are doing an
unlawful act.

In Namibian law, there are four different ways to define intention. These are what
they are:

Dolus directus (A)

This is typically interpreted to mean that the accused person's intent is to do anything
illegal or cause something illegal to happen.

Dolus indirectus (B)

When an accused individual can predict the unlawful behavior or effect, it is said that
they have this type of intention.

Dolus eventualis (C)

A person would be said to have harbored this type of intention if, while knowing that
his actions would have certain criminal repercussions, he nevertheless carried them
out, leading to the desired outcome. Simply put, while being fully aware of the
repercussions, the accused individual chooses to act in a given manner.

The principle of insanity

In Namibia is that the prosecution must prove criminal liability of the accused beyond
reasonable doubt, but the defence of insanity requires the accused to prove that they
were suffering from a mental defect or mental illness at the time of the crime. This is
a violation of the constitutional presumption of innocence, and the Court relies on
expert medical evidence to determine if the accused person is fit to stand trial. The
accused person is kept in a mental hospital until they become fit and able to stand
trial.

Principle of Consent

Can be understood from two perspectives: (i) Consent as a defence, and (ii) Consent
as a part of individual autonomy. In order to take the defence of consent, the
accused person needs to show that the consent was voluntarily given by the victim,
without coercion. In Namibia, the concept of euthanasia is still debated and some
judges hold physician assisted euthanasia to be equivalent to murder. Jonathan
Burchell defines private defence as “a person who is the victim of an unlawful attack
upon person, property or other recognised legal interest may resort to force to repel
such attack. Any harm or damage inflicted upon an aggressor in the course of such
private defence is not unlawful”.

Principle of Private defence

A term used in the Namibian criminal legal system to refer to when a person faces
an imminent or unlawful attack or where a third party’s interests are endangered. It is
recognised that if a person kills in private defence, it would not qualify as murder,
even though the threat would have been of grievous hurt. To make the law clearer, it
needs to be clarified as to when exactly the right of private defence would be vested
in a person. The Courts have held that only that much force should be used as is
necessary to ward off the imminent danger or apprehension, and if the bounds of
reasonable self-defence are exceeded, the extra force applied would amount to an
assault.

Principle of Joint liability

The principle that a crime can be committed by three people: the perpetrator,
accomplice(s), and accessories after the fact. In Namibia, corporate criminal liability
is established under the Criminal Procedure Act, which states that any act
performed, with or without a particular intent, by or on instructions or with permission,
express or implied, given by a director or servant of that corporate body, and any
omission, with or without a particular intent, of any act which ought to have been but
was not performed by or on instructions given by a director or servant, in the
exercise of his powers or in the performance of his duties, shall be deemed to have
been performed (and with the same intent, if any). Joint liability is a form of vicarious
liability that applies to acts performed with intention or by instruction from the
corporate body. It is a more severe form of vicarious liability than the common
purpose doctrine.

The principle of minimum criminalisation

Requires attention to the culture of violence against women, as it can lead to

overcrowding in prisons. This principle has also been criticised for increasing the
number of prisoners serving long and life sentences, as it has resulted in a major
shift in the length of prison terms

Principle of sentencing policy

Sentencing guidelines in Namibia are generally decided by the trial courts. The trial
court may determine the appropriate sentence based on how serious the offense
was. There is no predetermined method for assigning punishments; rather, the
sentencing guidelines are applied on an individual basis. In accordance with the
minimum sentencing guidelines for particular offenses, judges may impose lesser
sentences if they think there are "compelling circumstances" that support doing so.
The idea of a minimum sentence is still in use in Namibia.

The three principles of Namibia's "trial of Zinn" are used to establish the nation's
penal policies:
(A) The seriousness of the crime

The Court considers the seriousness of the offence to ensure that the sentence is
appropriate for the crime committed. We shall take into account both the aggravating
and mitigating elements in this.

(B) The offender's state of health

This section examines the offender's current state as well as some relevant
information, such as the offender's criminal history, any mitigating circumstances that
may have contributed to the crime, the offender's age, and other relevant details.

(C) Public Interest

This factor considers the higher public interest involved in convicting the perpetrator.
For example, if the crime is severe and falls into the category of the rarest of the rare
situations, bail may not be given to the criminal in the context of the wider public
interest.

The principle of fair labelling

Requires that there should be a co-relation between the name/description of the

offence and the impugned wrongful act. It has a constitutional argument to it, as it is
argued by scholars that if the offender commits a crime, the charge or stigma
attached to him/her must correlate with their wrongful act.

Example

Consider Oscar Pistorius's historic case as an example. In this case, Pistorius was
tried for the murder of Reeva Steenkamp. He was found guilty of culpable homicide
by the Court. However, media coverage and public reaction were quite different. The
general public began to characterize Pistorius as a murderer, a more serious charge
than culpable homicide. In circumstances like this, the concept of fair labeling seeks
to avoid over-stigmatization of the offender.
The principle of parsimony

Another sentencing guideline, similar to proportionality, which seeks to have the

imposition of imprisonment ass less as possible. It is all the more important in cases
of children or delinquent offenders, as this implies that the authorities must look for
other alternatives to imprisonment whenever and wherever possible. The underlying
idea of the principle of parsimony is that should a person be inflicted with
punishment; it must be done in a manner that is as less severe as possible.

Principle of Proportionality

The Constitutional Court of Namibia functions on the basis of individual rights under
Namibian criminal law. As a result, the proportionality test has become a critical
issue in limitations jurisprudence. In its strictest definition, the principle of
proportionality refers to a moral reasoning on the part of the judges in which they
assess the severity of the offense against the rights of the accused. In some ways,
the idea is thus a test of balancing interests. The landmark case on the
proportionality test was one in which the court was intended to evaluate whether the
death penalty was acceptable in light of Namibia's Constitutional principles.

The principle of totality is invoked when an offender is charged with multiple crimes,
each resulting in separate punishments.

The principle of mistake is not available to the accused under Common Law, and the
onus lies on the accused person to raise the defence of mistake. However, the
prosecution bears the final onus of proving beyond reasonable doubt that the
accused person performed the unlawful act intentionally and wilfully.

UNLAWFULLNESS
Unlawfulness is required for all offences, and is excluded when what one does is
justified. Namibian law recognises self-defence as a ground of justification, and other
grounds of justification include necessity, consent, and de minimis. The list of
grounds of justification is not closed, so new grounds can be recognised.

The Ultimate test

The ultimate test of illegality and justification is the community's legal convictions as
guided by the Constitution's values. It is a balancing act in which competing interests
and ideals are weighed. Furthermore, the current form in which the defenses are
recognized cannot be deemed fixed and must be subject to evolution in light of the
demands of the community's legal convictions as guided by the Constitution's
values.

PERVASIVE/UNESCAPABLE REQUIREMENT

Additionally, it's important to keep in mind that all criminal responsibility in Namibia is
predicated on an ongoing basis on unlawfulness. It is a requirement for every crime,
without exception, and is merely interpreted as a "silent" need in situations where it
isn't stated in the definition of an offense. Another thing to keep in mind is that while
formulating offenses, it is not usual to identify all potential defenses, especially not
those that must be read in due to the necessity of unlawfulness.

EXTENSIVE EFFECT

Unlawfulness does not have a fixed set of defences of fixed criteria, but rather a
normative decision must be made to require that the accused was under attack in
each and every case. This is due to the familiar practice of whether a defence is
available to a particular accused being a question of fact.

REASONABLE PERSON TEST

Unlawfulness is determined by reference to the legal convictions of the community,
as informed by the Constitution. Namibian courts often ask whether the accused
acted as the reasonable person would have. This practice serves a normative and
factual function, with two questions: what would the reasonable person do and did
the accused do what the reasonable person would do. Satchwell J in the South
African case of S v Engelbrecht 2005 (2) SACR 41 (WLD) developed the law when
she recognised that a reasonable person may respond against an 'inevitable' attack.

NEGLIGENCE

Negligence, often known as culpa, is a less serious type of violation than intentional
misconduct. If the form of blame is purpose, it is easier to prove for the prosecution
and usually results in a smaller penalty than a conviction for the same activity. As a
result, a conviction for culpable homicide would generally result in a sentence less
severe than a murder conviction.

Possible Offences

When a newspaper editor publishes something that is in contempt of court (such

publishing prohibited material), a conviction for contempt of court may be based on
negligence. For two common law crimes—culpable homicide and newspaper editors'
contempt of court—negligence is a sufficient type of fault.

As an alternative, negligence is sufficient culpability for a number of statutory

offenses, including reckless driving. For the time being, we will confine our
discussion to the common law crime of culpable homicide, which is the reckless
killing of another

The test
The reasonable person test is used to determine negligence. An accused is
considered negligent if his behaviour differs from that of a hypothetical reasonable
person in the accused's circumstances. The criminal law negligence test is based on
the civil law delict case of Kruger v Coetzee 1966 (2) SA 428 (A) 430.

In Kruger v Coetzee, Holmes JA (for a majority court) articulated the criteria for
negligence in delict as follows: 'Culpa arises for the purposes of responsibility if:

(a) In the defendant's position, a diligens paterfamilias [the diligent father of the
family]

(i) would anticipate the plausible possibility that his conduct would endanger
another's person or property and cause him patrimonial loss; and

(ii) would take reasonable precautions to prevent such an occurrence; however,

(b) the defendant failed to take such precautions.

In addition, according to criminal law, a reasonable individual must have known that
their action was unlawful, that is, banned by the law.

For the purposes of the criminal law, the standard for negligence must be interpreted
as follows to account for these differences:

(a) a reasonable person, in the accused's circumstances,

(i) would foresee the reasonable possibility that his conduct might result in a
consequence that is unlawful or that being in those circumstances is unlawful; and

(ii) would take reasonable precautions to prevent such an occurrence; and

(b) the accused did not take such precautions.

The Reasonable person

The most important details of the phrases Tokelosh, reasonable person, conduct,
believed, question is that in the case of Burger 1975 A, Holmes stated that a diligens
paterfamilias ('that notional epitome of reasonable prudence') was expected to tread
life's pathway with moderation and prudent common sense. In Mbombela 1933 AD,
the reasonable person was described as "of ordinary intelligence, knowledge and
prudence". In this case, the accused was between 18 to 20 years old and lived in a
rural village and believed in the existence of evil spirits called "Tokoloshes". On the
day in question, some children had reported in terror to the accused that they had
seen something inside this hut that had two small feet like those of a human being.
The accused concluded that the form was that of a Tokelosh and took his hatchet
and attacked what he thought was the "Tokelosh".

On investigation, it turned out to be his nine-year-old nephew. He was convicted of

murder, sentenced to death, and appealed. His defence was that he had not
intended to kill a human being since he genuinely believed the object to be a
Tokelosh. This belief was accepted as genuine by the Appellate Division and it
overturned the conviction for murder. The crucial question that confronted the court
was whether the accused’s belief in the Tokelosh was reasonable.

The most important details of the phrases reasonable person, conduct, and question
are that a reasonable person is someone of ordinary intelligence, knowledge and
prudence, and that there is only one standard of ‘reasonable man' to be taken as the
legal standard. This standard has been subjected to criticism for setting a standard
that is unattainable for some, and the solution lies in taking account of the more
subjective personal ‘internal’ attributes of the accused and attributing them to the
reasonable person. If all characteristics of the accused are attributed to the
reasonable person, the reasonable person becomes identical to the accused, and
their conduct is rendered, necessarily, reasonable. However, some account must be
taken of the characteristics or circumstances of the accused so that his conduct is
not compared with some impossible standard.

Degree of Negligence

The slightest negligence is sufficient for criminal law, while contributory negligence
on the part of the victim is not a defence.
Guarding against risk

The most important details of the phrases reasonable person, accused, foreseen,
consequence are that an accused brings about a consequence which a reasonable
person would have foreseen, and that the accused failed to guard against the
consequence as a reasonable person would have. Kruger v Coetzee is a leading
case on negligence which states that a horse belonging to the defendant strayed on
to a main country road through an open gate and caused a motor accident. The
defendant had foreseen the possibility of the horse straying through the gate and
taken certain steps to avoid it.

Foresight of actual consequence

The question of whether the reasonable person in the circumstances of the accused
would have foreseen the possibility of a prohibited consequence or the existence of
a prohibited circumstance must be qualified to reflect the particular prohibited
consequence or circumstance. This principle was expounded in the case of S v van
As (1976 A) where the accused had been involved in an altercation with a very fat
man and the victim fell backwards and died. Rumpff CJ stated that it must be proved
that the accused could and must reasonably have foreseen that death could
intervene as a result of the assault. For a finding of negligence, the particular
prohibited consequence or circumstance must have been foreseen.

The criteria for negligence are based on the case of Kruger v. Coetzee and are as
follows:

(a) A logical person would— given the circumstances surrounding the accused.

(i) would foresee with a reasonable degree of certainty that his acts would have a
legal consequence or that being in those circumstances would have a legal
consequence; and
(ii) would take the necessary precautions to avoid such a situation; and

(A) The defendant didn't do these things.

VOLUNTARINESS

An accused person cannot be held responsible if their actions were unintentional.

During a period of involuntariness, the accused is nonexistent legally.

As Burchell notes, "There is no need to proceed further in determining liability in the

context of a person who acts involuntarily because such a person will inevitably also
lack capacity and, incidentally, mens rea as well." Nobody questions the defense of
automatism's all-encompassing character, which suffocates all other defenses.

Absolute Force

The defence of involuntariness is used when an accused's movements are produced

by overwhelming force, such as when a person overwhelms them and forces them to
strike another person. If the force experienced by the accused was anything less
than absolute, the accused may no longer make a claim to involuntariness. When an
accused makes a claim to have been subjected to compelling force, they may claim
the defence of necessity. This defence undermines the unlawfulness requirement,
but may also be better understood as undermining the mens rea requirement.

Sane and Insane Involuntariness / Automatism

Mental illness or intellectual disability can be used to invoke the provisions of a

pathological incapacity defence (formerly known as an insanity plea). This means
that if an accused indicates that the source or cause of their state of involuntariness
was a ‘mental illness or intellectual disability’, they are regarded as having raised the
‘insanity defence’. In the case of S v Mahlinza 1967 (1) SA 408, the court found that
conduct of the accused was involuntary, though it also found that this condition was
due to a mental illness or intellectual disability, and therefore it was a so-called
insane automatism. Now, courts have a wide discretion in disposing of an accused
found not guilty because of mental illness or intellectual disability, ranging from
committal to a mental institution to unconditional release.

Proof of Involuntariness

The prosecution bears the onus of proving criminal liability beyond reasonable doubt,
subject to the ‘reverse burden' applied in cases of pathological incapacity. Evidence
must be presented to raise a reasonable doubt as to the voluntary nature of the
alleged actus reus and, if involuntary, that this was attributable to some cause other
than mental pathology. If the accused seeks to rely on a defence of involuntariness,
they must produce evidence to raise a reasonable possibility that they acted
involuntarily.

CAUSATION

Causation is a legal criterion that the state must prove when an accused is charged
with a result crime. There are two types of crimes: situation crimes and consequence
crimes. Circumstance crimes, like as parking in a restricted zone, forbid a specific
state of being. Crimes of consequence/result prohibit the commission of a specific
consequence, such as murder. The distinction between a situation and a
consequence crime is whether the crime in question forbids an act or omission that
results in a specific banned outcome.

Example – Quickening death

The crime of murder and culpable homicide is the quickening of death, not the
causing of death in the abstract. This is exemplified by the case of Hartmann Lee v.
U.S., 432 U.S. 23, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977) in which a medical doctor
was charged with the murder of his 87-year-old father who was bedridden, suffering
great pain, and close to death. The law is clear that it constitutes the crime of murder
even if the accused hastened the death of a human being who was due to die in any
event.

Common Purpose

Common purpose is the doctrine which allows a court to regard the conduct of each
person in a group in a common purpose, to be the conduct of every other person in
the group. This means that the sum of the conduct of every participant in the
common purpose is the “group’s” conduct, and every individual is regarded as
having done what the group did. However, this does not exempt the state from
having to prove causation, as it still requires that someone or some combination of
members of a group in the common purpose must have done something that
satisfies the causation requirements. The implications for causation are important to
understand properly, as the principles support a deviation from having to prove
causation.

Two Stage Enquiry

The courts now adopt a two-phase enquiry into causation, firstly into factual
causation using the conditio sine qua non test, and secondly into legal causation
based on policy considerations of reasonableness, fairness, and justice. Specific
tests of legal causation are used to assess factors such as reasonable foreseeability,
directness, the absence or presence of a novus actus interveniens, legal policy,
reasonability, fairness and justice.

Factual Causation

The test of conditio sine qua non is an intuitive test of whether one is dealing with a
'condition without which not'. In the case of S v van as 1967 4 SA 594 A, the Court
held that even if the accused had acted in accordance with their legal duties and
searched properly for the children, the children would have died anyway. The
question must be asked: if the accused had conducted himself or herself as he
should have, would the prohibited consequence have eventuated nevertheless?

Hypothetical Other Words

The test for factual causation requires imagining a hypothetical world in which an
event does not occur. This exercise is used to identify what is responsible for
something in our actual world.

Presumptions

When considering the possibility of creating a parallel world, it is important to

recognise that there is nothing objective or scientific about it. Even if we assume that
X caused the death of Y by shooting him in the head, we do not know whether Y was
about to have a stroke or step in front of an oncoming train that would have killed
him instantly. We also don't know what effect the small variation we imagine for the
parallel universe will have, and we are at risk of overlooking the possibility of creating
universes which don't make sense. The hypothetical world is a creation of our own
minds, and there are no objective truths in this domain. We can imagine a scenario
where the driver of a mining vehicle is responsible for ensuring that any passenger
wears their seatbelt. If the driver does check, notices that the passenger is not
wearing her seatbelt, drives off anyway, and proceeds into the mine, down a steep
incline. If the driver drives negligently and loses control of the vehicle, the passenger
is ejected from the vehicle, strikes a rock with her head, and dies shortly thereafter.
One can identify the failure of the driver to insist that the passenger wear her
seatbelt as a factual cause. The theory that a passenger would not have died if she
had been strapped in during a car accident assumes too much. In reality, the
passenger's part of the cabin was crushed when the vehicle slammed into a wall.
While it is possible that the passenger died even if she had been strapped in, the
conclusion should be made with caution. It is important to recognize that conclusions
about what would have happened in different universes should be made with
caution.
Legal Causation

Legal causation is determined by considerations of justice and fairness, following the

decision in Mokgheti S v Mokgethi 1990 (1) SA 32 (A) 39.

Four primary tests of legal causation may be discerned:

novus actus interventiens test, individualisation tests, foreseeability test, and

adequate causation.

Novus Actus Interveniens

The test of novus actus interveniens (also known as novus actus interveniens) asks
whether anything abnormal intervened between the sine qua non cause and the
ultimate forbidden outcome such as to ‘break the chain of causation’. When an
unusual occurrence occurs, it breaks the chain of causality.

'The novus actus (or nova causa) interveniens test is phrased in terms of a
'abnormal' intervening act or event that aids in breaking the chain of causation,'
Burchell argues. The normalcy or abnormality of an act or event is determined by
using universal human experience criteria.'

Strict liability

It is a type of liability in which a person is held legally liable for the results of their
actions even when they did not commit a crime or have no criminal intent. It is
essentially a legal principle that holds a party (the defendant) accountable for its acts
without the plaintiff having to establish the defendant's carelessness or guilt.

Even if the defendant took reasonable care and adhered to safety requirements, he
or she may still be held accountable if another person is injured as a result of
engaging in ultra-risky activities like maintaining wild animals, using explosives, or
producing defective products. Strict Liability Offenses also do not require the
prosecution to demonstrate intent; rather, they are simply necessary to demonstrate
that an illegal act or omission happened. However, the accused is allowed to
disprove the claim by showing diligence. If you are found guilty of a strict
responsibility offense, you could receive both fines and jail time.

For the application of the rule, the following three elements should be there:

1. Dangerous Things

According to this rule, the liability for the escape of thing from one's land arises only
when the thing collected was a dangerous thing. In Rylands v. Fletcher(1868) LR 3
HL 330, the thing was large water body (reservoir). The rule is also applied to gas,
electricity, vibration, sewage, explosive, etc.

2. Escape

For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing
the damage must escape to the area outside the occupation and control of the
defendant. The case of Read v. Lyons and Co [1947] AC 156, is an example of no
escape and hence no liability. In this case, the plaintiff was an employee in the
defendant's ammunition factory, while she was performing her duties inside the
defendant's remises, a shell, which was being manufactured there, exploded and
she was injured. There was no evidence of negligence on the part of defendant. It
was held that the defendant was not liable because there was no escape of thing
outside the defendant's premises. So, the rule of Rylands v. Fletcher did not apply to
this case.

3. Non-natural Use of Land

There should be non-natural usage of land to make the defendant liable. Like in
Rylands v. Fletcher case, collecting large body of water is considered to be non-
natural use of land.

Exceptions to the rule of strict liability

The following exceptions to the rule have been recognised by Rylands v. Fletcher

1. Act of God

Act of God (vis major) was also considered to be a defence against the action of
strict liability. If the escape has been unforeseen and takes place because of super
natural forces without any human intervention, the defence of act of God can be
pleaded.

2. Consent of the Plaintiff

When the plaintiff has consented to the accumulation of the dangerous thing on the
defendant's land, the liability under the rule does not arise. Such consent is implied
where the source of danger is for the 'common benefit' of both the plaintiff and the
defendant.

3. Act of Third Party

If the harm has been caused due to act of a stranger, who is neither the defendant's
servant nor the defendant has any control over him, the defendant will not be liable
under this rule.

4. Statutory Authority

An act done under the authority of State is a defence to an action for tort. The
defence is also available when the action is under the rule in Rylands v. Fletcher.
Statutory authority however cannot be pleaded as a defence when there is
negligence.

5. Plaintiff's Own Default

Damage caused by escape due to the plaintiff's own default was considered to be a
good defence in Rylands v. Fletcher itself. If the plaintiff suffers damage by his own
intrusion into the defendant's property, he cannot complain for the damage so
caused
Absolute Liability

The rule of absolute liability is the strict liability rule less the exemption, to put it
simply.

It indicates full legal liability for harm or damages, without the need for proof and
irrespective of the level of fault or negligence.

The prosecution need not establish purpose, knowledge, recklessness, or ignorance

in connection to an element of an offense when there is absolute culpability for that
component. Unless the "law that creates the offence provides" for it, liability is not
unqualified. Total Liability Offenses only need the prosecution to demonstrate that an
illegal act or omission took place. Under the Road Traffic Act, failing to stop at a stop
sign is an example of an absolute liability offense.

Vicarious Liability

Vicarious responsibility is a legal doctrine that holds one person accountable for the
deeds of another. Vicarious liability is an exception to the general rule that the
person who committed the wrongdoing should be held solely responsible for any
harm it causes. It is necessary for there to be a specific type of relationship between
the two parties and for the wrongdoing to be somehow tied to that relationship in
order to hold one person accountable for the conduct committed by another.

Principal-agent relationships, master-servant relationships, and partnerships are

typical instances of such relationships.

PATHOLOGICAL NON RESPONSIBILITY

Pathological incapacity is a defence that has traditionally depended on the youth of

an accused, or whether the accused suffers from a so-called pathological mental
condition. This defence is known as the insanity defence, now known as the defence
of pathological incapacity.

A non-pathological condition called pathological incapacity can result from any non-
pathological situation, although it typically involves a provocation claim, a claim of
extreme emotional stress, a claim of intoxication, or a combination of these. There is
no official definition of what constitutes a mental sickness or defect, and what the
civil law recognizes as a mental condition does not convert into a mental disease or
defect under the criminal code. According to the Rumpff Commission, the law utilizes
terms like "insanity" and "mental disease" to refer to certain conditions of a person's
mental faculties that are significant from a legal perspective, rather than attempting
to define them. This is a legal term that is unrelated to medical or scientific factors
and can be arbitrary.

DANGER, DEVIANCE, DYSFUNCTION, AND DISTRESS

A wide range of additional signs have been proposed as suggesting the presence of
psychopathology in addition to deviance. Distress, danger, and dysfunction are some
of these indicators. Together with deviation, they are considered to be only
suggestive of the existence of a psychopathology. This is due to the fact that each of
these indications is a relative one. An understanding of the human predicament may
be indicated by a state of distress. That we shall all pass away at some point is
distressing. Most people experience social and financial challenges, if not the
majority. Regarding danger, we continuously put ourselves and others in danger as
we go about our daily lives. Swimming, being exposed to the sun, and driving or
being driven are all commonplace activities that should be avoided. A similar point
may be made regarding malfunctioning.

MENTAL DISORDERS DIAGNOSTIC AND STATISTICAL MANUAL

The Diagnostic and Statistical Manual of Mental Disorders (DSM) shows the extent
to which expert experts agree on a concept of psychopathology and specific mental
disorders. The DSM, presently in its fifth edition (the DSM-5), identifies the illnesses
that have emerged from its criteria of distress, dysfunction, and hazard. It defines the
currently acknowledged mental diseases and provides a set of defining criteria for
each. Symptoms and indicators are the most common criteria. Symptoms are the
subjective descriptions of a patient's illness. Signs are objective observations that a
diagnostician may make directly or indirectly. The presence of the given criteria must
be established by the diagnostician, who is supported by text descriptions of the
condition or collection of disorders. Only seldom does it comment on the origin of
illnesses (aetiology), and even then, its approach is theoretical.

VERSAI DOCTRINE

In other words, a person who engages in unlawful action is criminally accountable for
all of the unlawful consequences of that activity, even if he or she does not bear the
required blame (intention or negligence) in relation to those consequences. As a
result, the entirely unintentional and benign illegal effects of an unlawful behavior
became penalized.

The most important details in this text are the cases of R v Wallendorf and R v
Matsepe. In R v Wallendorf, the accused assaulted a policeman who was
undercover, and was charged with obstructing him in the performance of his duty. In
R v Matsepe, the accused drove a truck negligently and collided with a tree, but had
no knowledge of the presence of a child on the back of the truck and of the child's
death. The court declared that an accused could be found guilty of culpable homicide
due to his negligence where it was found that the accused had no knowledge of the
presence of the deceased at the time of the accident. The versari doctrine was
abolished in 1962 in S v van der Mescht, where the accused and another were in
possession of unwrought gold amalgam and the heating of the amalgam produced
mercurial gases which fatally poisoned the accused's accomplice and four children.
The prosecution failed to prove that the deaths were attributable to the accused's
negligence, so the remaining exception of strict liability still applies.

AUTOMATISM (general criminal defences)

What is Automatism?

When the body does an action without the mind having any input at all (such as
during a spasm or a reflex), it is said that the person doing the action is acting in an
automatistic condition. The defendant must completely lose control over their
activities in order to assert the automatism defense, which exempts them from
liability for their actions because their behavior does not meet the fundamental
standard of voluntariness.

There must be a complete loss of the defendant's voluntary control. The defence is
inapplicable if the defendant maintains diminished, impaired, or partial control.

The defense of automatism is restricted in the following situations:

- When the automatism is brought on by a mental illness; when the automatism

is brought on by self-induced intoxication;
- When the automatism is brought on by a self-induced incapacity other than
alcohol or drug intoxication (such as failing to eat while taking insulin); or
- When the automatism is only partially destroyed by the defendant's volition.

The burden of proof falls on the prosecution in cases where it is asserted to refute it
in accordance with criminal law.

PRINCIPLE OF LEGALITY

An accused may not be found guilty of a crime unless the type of conduct with which
he is charged:

(a) has been recognised by the law as a crime;

(b) in clear terms;

(c) before the conduct took place;

(d) without the court having to stretch the meaning of the words and concepts in the
definition to bring the particular conduct of the accused within the compass of the
definition, and

After conviction an accused may not be sentenced unless the punishment also
complies with the four principles set out immediately above under 1(a) to (d)

The principle of legality in criminal law embodies the following five rules or principles:

Ius acceptum rule

According to the ius acceptum principle (which is discussed in item 1), a court may
only convict an accused of a crime if the sort of activity he engaged in is recognized
by the law as a criminal.

Ius praevium rule

States that a court may only find an accused guilty of a crime if the type of act
performed by him was already recognized as a crime at the time of its commission.

Ius certum rule

The ius certum principle states that crimes should not be defined in an ambiguous
manner.

Ius strictum rule

States that a court should construe a crime's definition narrowly rather than broadly.

The four aforementioned principles must also be applied mutatis mutandis when it
comes to imposing a sentence after X has been found guilty. This means that the
applicable sentence (regarding both its form and extent) must already have been
established by the law at the time of the commission of the crime in reasonably clear
terms, and that a court must interpret the words defining the applicable sentence.

The ius acceptum rule in common-law crimes

A court, however, may not invent new offenses. As a result, when answering the
question "what is criminal behaviour?" The court is bound by "law as we have
received it to date," also known as the ius acceptum. A ius acceptum must be
understood to refer to both common law and existing statutory law. It is helpful to
divide the discussion of the application of this rule into two sections: first, the
application of the rule to crimes under common law, and second, its application to
crimes under statute. Even if some actions may be morally or religiously incorrect,
they may not necessarily be against the law.

Not all violations of the law are considered crimes. A simple violation of contract, for
example, is not a crime. Only when specific conduct is labeled a crime by law
(statutory or common law) is criminal culpability possible. As a result, a court is not
authorized to condemn action solely because it "deserves" to be punished in the
judge's opinion of morality, religion, or even politics. The only method for a new
crime to be formed is through law.

NECESSITY

If someone takes action to protect their own or another person's life, bodily integrity,
property, or another legally recognized interest that is threatened by a threat of harm
that has started or is imminent and that cannot be avoided in any other way, they are
acting out of necessity and their action is legal as long as they are not legally
required to face the danger and the interest being protected by the protective action
is not excessive compared to the interest being violated. It makes no difference
whether the danger is posed by human coercion or by a factor outside of human
control, such as circumstance.

Necessity and private defence are two grounds of justification used to protect
interests such as life, bodily integrity and property from threatening danger. Private
defence always stems from and is directed at an unlawful (human) attack, while
necessity can stem from either an unlawful human act or chance circumstances,
such as acts of nature. In cases of necessity, the act of defence is always directed at
an unlawful human attack, while in cases of private defence, it is directed at either
the interests of another innocent party or a mere legal provision. To justify necessity,
there must be strict compliance with the requirements of necessity before the
defence can be successful. If X acts in a situation of necessity, she acts lawfully, and
Y cannot act in private defence against her act.

Necessity is either a ground of justification or a ground excluding culpability

Necessity can be either a ground of justification (which excludes the unlawfulness of

the act) or a ground excluding culpability. In a situation of necessity, X may infringe
the interest which is of less importance according to the legal convictions of the
community, in order to protect the interest which is of greater importance. In certain
circumstances, necessity can operate as a ground excluding culpability, as the law
does not expect a person to be a martyr or a hero. The best example of this is when
X kills somebody in order to ward off a threat to her own life. In the example given, Z
orders X to kill Y and threatens to kill X if she fails to obey the command. X's conduct
is unlawful because a person is not entitled to consider her life as more important
than that of her fellow human being. The Constitution provides that everyone is equal
before the law and has the right to equal protection and benefit of the law. However,
only someone with a quality of heroism would intentionally sacrifice her life for that of
another. X cannot be blamed for committing the unlawful act because she acts
without culpability. The distinction between necessity excluding unlawfulness and
necessity excluding culpability requires the acceptance and application of the
normative theory of culpability.
Necessity is a ground of justification that excludes culpability, meaning if X is
coerced to kill Y, she acts unlawfully and Y may act in private defence. However, if X
is coerced to kill Y, she acts unlawfully and Y may act in private defence. This is
because if the coercion was treated as a ground of justification, the innocent victim
would be lawfully obliged to submit to the attack upon herself, and if she were to
defend herself, her act would be unlawful.

Culpability Requirement

It must be justified to hold someone accountable for their illegal actions personally.
"Could one reasonably have expected X to avoid the wrongdoing?" is how culpability
is defined. A mentally ill individual or a small kid cannot be held legally accountable
for their crime due to the need of responsibility. The concept of intention also
encompasses culpability, thus if X lacks intention, he also lacks responsibility. This
guarantees that no one is held accountable for harm they unintentionally do or were
not or could not have been aware of.

Culpability includes the idea of intention. Therefore, if X lacks intention due to an

error, he therefore lacks responsibility. We may see this by thinking about the
following two instances:

(a) As X leaves a gathering, he removes a coat from a row of pegs in the building's
entrance hall that he honestly believes to be his. Despite being identical to X's, the
coat really belongs to Y. X would be in violation of the stealing law if responsibility
were not a prerequisite.

(b) X throws a bottle through a window with the intention of having it land on a
house-adjacent garbage dump that is off-limits to the public. Y is an escaped
prisoner who is trying to avoid the cops.

Mens rea is a technical term used to describe the requirement of culpability, which is
derived from the Latin word culpa, meaning "blame". It is an ambiguous expression
and is often criticised by writers on criminal law. To avoid criticism, the requirement
can be described as "culpability" or "blameworthiness".

Culpability presupposes that man is free to choose whether to engage in conduct for
which he will be held liable. If one adopts a deterministic point of view, there would
be no place for the requirement of culpability and criminal law would collapse.
Whether man's will is indeed free is a philosophical question. The view of modern
writers on criminal law is that man's will be free, despite the fact that this assumption
is not empirical proof. Freedom of will must be construed as man's ability to control
the influence of his impulses and passions and his environment. For the purposes of
criminal law, one should be able to say that X could have behaved differently. This is
why young children and mentally ill people are not punished when they perform
unlawful acts.

Legal culpability is the requirement for liability, referring to legal culpability as

opposed to moral culpability. Legal and moral norms often coincide, but do not
necessarily always do so. Culpability is always used in the context of legal norms,
even when a person does not feel they have done anything blameworthy. The blame
inherent in culpability does not relate to X’s character, personality or general attitude
towards life; it is coupled to a specific act. There are two forms of culpability in our
law, intention and negligence. The principle of contemporaneity refers to the
culpability and the unlawful act. The most important details of the phrases intention,
culpability, and murder are that a crime is committed when an unlawful act is
committed at a certain time without culpability, and culpability is present at a later
stage without an unlawful act taking place simultaneously. In Masilela, X assaulted
and strangled Y, intending to kill him, then, believing him to be dead, threw his body
onto a bed and ransacked the house. When charged with having murdered Y, it was
argued that there were two separate acts; that during the first act there was an
intention to kill without an act of killing and during the second act an act of killing
without intention. This argument was rejected by the Appeal Court.

Culpability is the grounds upon which X may personally be blamed for his unlawful
act. To determine if X acted with culpability, his unlawful act must be measured
against a certain norm or standard. To determine culpability, one must enquire
whether the law could in all fairness have expected X to act differently. Culpability is
the opposite of merit or praise, which expresses an approving evaluation. The test
for intention in criminal law is subjective, but also normative. In the overwhelming
majority of cases in which crimes are committed intentionally, it is relatively easy to
find the grounds upon which X may be blamed for his deed. These grounds include
awareness of unlawfulness, criminal capacity, and willed the commission of the act
constituting the crime. However, there may be exceptional circumstances that result
in these three grounds not being sufficient to constitute grounds for blaming X for his
act. For example, if X commits the act in a situation of necessity in the form of
inescapable duress, he lacks culpability despite the fact that he kills Y intentionally
(including awareness of unlawfulness).

Section 78 (1) Criminal Procedure Act

Mental illness or mental defect and criminal responsibility

78. (1) A person who commits an act which constitutes an offence and who at the
time of such commission suffers from a mental illness or mental defect which makes
him incapable - (a) of appreciating the wrongfulness of his act; or (b) of acting in
accordance with an appreciation of the wrongfulness of his act, shall not be
criminally responsible for such act.

Criminal Capacity + Test for Criminal Capacity

Criminal capacity refers to the mental abilities necessary to be held responsible and
liable for unlawful conduct. It is often abbreviated as "capacity". People such as the
mentally ill and young children cannot be held criminally liable due to their lack of
mental abilities.

The mental abilities which a person must have in order to have criminal capacity,
are:

(1) the ability to appreciate the wrongfulness of his conduct; and

(2) the ability to conduct himself in accordance with such an appreciation of the
wrongfulness of his conduct.
If a person lacks one of these abilities, he lacks criminal capacity and cannot be held
criminally liable for unlawful conduct in which he engaged while lacking one of these
abilities.

Criminal capacity is an important factor in determining whether a person has

committed an unlawful act. It is necessary to consider X's capacity when it comes to
private defence, as even someone who lacks capacity may still be capable of
committing an unlawful act. Capacity and culpability are two different concepts, with
capacity being one of the grounds for blame in culpability. In determining whether X
had intention, one must ascertain what knowledge he had. If an investigation reveals
that X lacked capacity at the time of his conduct, it becomes unnecessary to
investigate whether he acted with intention or negligence. The most important details
in this text are the two psychological requirements for capacity: the ability to
distinguish between right and wrong, and the ability to conduct himself in accordance
with his insight into right and wrong. It is important to note that capacity is not the
same as awareness of unlawfulness, which is part of intention or dolus. To
determine liability, a court needs to know whether X had capacity at the time of his
act. These two psychological factors form the basis of a person's capacity and their
responsibility for his conduct.

CASES

S v Zinn 1969

Principles dealt with: 1. Combination theory of punishment. 2. Using crime, criminal

and interests of society to determine punishment. 3. Weighing severity of crime,
criminal’s personal circumstances & interests of society determines punishment.
Outline: Appellant committed multiple instances of fraud over 8 years and was
sentenced to 15 years in jail. Outcome: Sentence reduced to 12 years. (Principle of
legality)

S V ZINN 1969 (2) SA 537 (A)

Facts
The appellant in this case was charged in the Cape of Good Hope Provincial Division
with 63 counts of fraud, 291 counts of theft and a contravention of section 135 of the
Act 24 of 1936. Zinn aged fifty-eight pleaded guilty and was found guilty with
fourteen counts of fraud and 221 counts of theft and the one count of contravening
the Insolvency Act. The court held that there had been an over-emphasis of the
effect of the appellant’s crime and an underestimation of the person of the appellant.
No evidence was led as to the facts on which the various charges were based but
counsel for the state with the consent of counsel for the defence. He was sentenced
to 15 years’ imprisonment and he now appeals against the sentence imposed on
him.
Issues: On the question of misdirection it was submitted that the reference
in the judgement on sentence to “thousands of little men who must suffer” was
irrelevant. There was no evidence at all that “thousands of little men” had suffered
R v Dudley and Stephens (1884)

Facts. Dudley and Stephens along with Brooks and Parker(victim) were cast away at
sea without weeks of food and water except for some turnips and a turtle. After
twenty days, Dudley and Stephens proposed one person sacrifice himself in order to
save the rest. Brooks dissented while Dudley and Stephens decided to kill Parker
since he was the weakest and youngest. On the 25th of July, seeing no rescue in
sight, the two men killed Parker and the three men feasted on his body. Four days
later a vessel rescued them and Dudley and Stephens were charged with murder.

Issue. Whether the killing of Parker was murder considering the circumstances of
this case.

Held. Yes, it is murder. Stephens and Dudley to be sentenced to death.

The necessity of hunger does not justify larceny, let alone murder. Stephens and
Dudley chose the weakest and youngest to kill and it was not more necessary to kill
him than any of the other grown men.

Stephens and Dudley were tempted to kill Parker but temptation itself is not an
excuse for murdering him. Their unfortunate circumstances also do not lend leniency
to the legal definition of murder.
Discussion. As necessary the circumstances seemed where sacrificing one’s life
would save the rest, that itself does not justify murder. The fact that Dudley and
Stephens chose the weakest person to be the victim also does not justify that Parker
could not have survived. Instead, by killing him, it is only making certain that he had
no chance of survival.

S v Chretien 1981

Principle: Unlawfulness – Justification – Intoxication Facts: Accused drank at party.

When leaving drove into people. Significance: Justified defence but criticized
because treated less harshly than sober person. 1) If so drunk movements
involuntary 2) In exceptional circumstances, person can lack legal capacity 3)
Specific intent theory rejected 4) Court should not lightly infer intoxication led to
involuntary conduct. Subsequent statutory offence under Criminal Law Amendment
Act 1988

In S v Chretien, 1981 (1) SA 1097 (A), which preceded, it was determined by this
court that persons who were so intoxicated that their acts were merely uncontrolled
muscular movements are not criminally liable, because their acts are not recognised
as such for purposes of criminal liability. Those who committed acts which were
more than mere uncontrolled muscular movements but were so intoxicated that they
were unable to appreciate what they were doing, or were unable to appreciate the
difference between right and wrong, would lack criminal capacity and would
accordingly escape criminal liability.

Facts:
The accused had drunk a lot of alcohol at a party which broke up due to some

discontent. Under the influence, the appellant drove his car into a crowd of

people who had been at the party and were now standing in the street, killing

one and injuring five. He was charged with one count of murder and five of

attempted murder. The trial court found him guilty of culpable homicide in

respect of the killing, but acquitted him of the attempted murder charges and

even of common assault, as it held that the accused lack the requisite

intention for even common assault, since he claimed that he believed in his

drunken state, that the people would move out of his way. The case went to

the A.D. on a question of law from the Attorney General.

Issue: On charges of attempted murder, could the accused be convicted of common

assault where the requisite intention for the offence had been influenced by

his voluntary intoxication?

Rule and application of law: Rumpff CJ held that even common assault
required intention, and where there is none (or where it cannot be proved)
because of voluntary intoxication, there can be no conviction. He held that
voluntary intoxication can be a complete defence to criminal liability, where the
accused was ‘dead drunk’, but in cases where the accused was only slightly drunk
there would be no defence, since the conduct remained voluntary, i.e. the accused
could still distinguish between right and wrong. Thus the accused’s
liability would depend on whether the accused had lost his criminal capacity due to
the severity of the intoxication. It was held that a high degree of evidence was
required for this defence before it would be accepted.

Judgment: Held that the trial court was correct and that since the
accused lacked requisite dolus, the accused could not be found guilty of common
assault.
S v Kavin 1978

Principles dealt with:

1. Mental Illness
Outline: X was depressed and killed his wife, daughter and son, believing they
would be reunited in Heaven. X was obviously mentally ill.
Outcome: Accused was remanded to a mental institution

Kavin 1978 (2) SA 731 (W)

He had money troubles. The court held that even though he could appreciate the
wrongfulness of his conduct, he could not act in accordance with that appreciation
because of his mental illness. Evidence found that it was not an impulsive act, but
premeditated.

S v Leeuw 1975
Principles dealt with:
1. Defense of impossibility
2. Placing of a positive duty by regulation/law is a requirement for using defense
of impossibility.
3. Objective impossibility of compliance with relevant legal position
(inconvenience or difficulty does not constitute impossibility)
Outline: X drove a vehicle without a license and due to his being a restricted person
found it difficult to obtain a driver’s license. He was convicted of driving without a
license and appealed against the decision

S v Nowaseb

The accused faced charges of murder, assault with intent to do grievous bodily harm
and common assault, all read with the provisions of the Combating of Domestic
Violence Act 4 of 2003.
(dolus directus and dolus eventualis )

The accused has been found guilty of murder, acting with direct intent, assault with
intent to do grievous bodily harm and common assault, all of which are read with the
Combating of Domestic Violence Act 4 of 2003. He also escaped from lawful
custody. The court followed the principle of individualization for purposes of finding a
just and fair sentence, taking into account the crime, the offender and the interests of
society, as well as the element of mercy. The most important details of the phrases
guilty plea, court, and punishment are that in the court’s determination of what would
be appropriate punishment, regard must equally be had to the objectives of
punishment namely, deterrence, prevention, reformation and retribution. It is trite that
equal weight or value need not be given to the different factors and, depending on
the facts, the situation may arise where one or more factors require emphasis at the
expense of others. If the accused’s alleged drunkenness is a factor the court is
expected to take into consideration for purposes of sentence, then the onus is on the
accused to put evidence to that effect before the court; albeit in the form of his own
evidence. The mere offering of a plea of guilty could only be considered a sign of
remorse if the court, in light of the evidence presented, is satisfied that the accused
fully took the court into his confidence and came clean on the wrong he has done.
The evidence in the present instance showed that, during his testimony, the accused
considerably downplayed the criminality and moral blameworthiness of his actions.
The guilty plea was offered on a different basis of intention (dolus eventualis),
despite overwhelming evidence in possession of the state that the accused acted
with direct intent when he murdered his son. Hold, further, that the guilty plea offered
by the accused on the charge of murder lacks sincerity as a sign of remorse and
carries no weight in sentencing. Finally, it is trite that the period an accused spends
in custody, especially if it is lengthy, is a factor which normally leads to a reduction in
sentence.