Learning Unit 4 transcript

This lesson is located in the link below:

https://youtu.be/OZYE2vamrHk

Welcome Students to another lecture on the General Principles of Criminal Law! As you will see,
today’s learning unit focuses on very interesting, but sometimes intricate topics. If, after the lesson,
you have some queries on today’s lecture, please feel free to contact your lecturers who are more
than willing to assist you.

Let’s begin the lecture with a recap of the last session we had. After completing the first two Learning
Units, we moved on to criminal liability and discussed the first of the requirements for criminal liability,
namely the act (or conduct), in Learning Unit 3.
Under the act, we focused on acts and omissions. We learnt that an act is not a thought, and a thought
is not punishable. An act must be a human act, and it must be voluntary. To determine what a
voluntary act consists of, we examined absolute force, natural forces and automatism. Under
omissions, we dealt with the legal duty to act positively, the state’s duty to protect citizens from
violent crime, and the defence of impossibility.

In this learning unit, we will discuss the second element of criminal liability. In terms of this element,
the act or conduct must comply with the definitional elements of the particular crime with which X is
charged. We will first consider the meaning of the concept "definitional elements". Thereafter, we will
discuss a very important requirement that forms part of the definitional elements of certain (but not
all) crimes, namely the causation requirement. Under causation, we will examine the two types of
causation, namely factual causation and legal causation, as well as the courts’ approach to causation
and case law on causation. You will see that in determining factual causation, we basically deal with
the conditio sine qua non principle (also termed the but-for causation). And in determining legal
causation, we first consider policy considerations, and then thereafter ask whether any of the theories
are applicable, that is, the individualisation theory, the adequate causation theory and the novus actus
interveniens.

The definitional elements signify the concise description of the requirements set by the law for liability
for a specific type of crime. These requirements are not the general requirements applying to all
crimes (e.g., voluntary conduct, unlawfulness, criminal capacity and culpability), but the particular
requirements applying only to a certain type of crime. For example, for the crime of murder, we will
need to see something in the definitional elements about killing or causing the death of another
person, and for the crime of kidnapping, a statement on depriving a person of his or her personal
freedom. The definitional elements always contain a description of the kind of act that is prohibited
(e.g., "possession“ of something, "sexual penetration“, "the making of a declaration" or "the causing
of a certain state of affairs"). The definitional elements do not only contain a description of the kind
of act that is prohibited (as explained above), but also a description of the circumstances in which the
act must take place, such as the particular way in which the act must be committed. For example,
“possession” of prohibited drugs, “sexual penetration” without consent, “the making of a declaration”
falsely under oath. The definitional element may also contain the characteristics of the person
committing the act (e.g., "a person who owes allegiance", in high treason), or the nature of the object
in respect of which the act must be committed (e.g., possession of "cocaine“). The definitional
elements may sometimes describe a particular place where the act has to be committed (e.g., parking
"on a yellow line"); or a particular time when or during which the act has to be committed (e.g., parking
"on a Sunday"). Don't confuse the "definitional elements" with "the definition of the crime". The
definition of the crime contains the definitional elements as well as a reference to the requirements
of unlawfulness and culpability. The definitional elements, on the other hand, do not contain a
reference to the requirements of unlawfulness and culpability. The definitional elements of murder
are "to cause somebody else's death". The definition of murder is "the unlawful, intentional causing
of somebody else's death".
When we examine the definitional elements of crimes, we find that crimes can be divided into two
groups, namely formally defined crimes and materially defined crimes. In the case of formally defined
crimes, the definitional elements prohibit a certain type of conduct (commission or omission),
irrespective of what the result of the conduct is. Examples of crimes falling into this category are
perjury and the possession of drugs (For example, you are not allowed to lie under oath or be in the
possession of illegal drugs). In the case of materially defined crimes, on the other hand, the definitional
elements do not prohibit a specific conduct, but rather any conduct that causes a specific condition.
Examples of this type of crime are murder, culpable homicide and arson. In murder and culpable
homicide, the perpetrator causes the death of another person, with intent as in murder, and
negligently as in culpable homicide. In arson, the perpetrator intentional sets fire to immovable
property of another. These types of crimes are also known as result or consequence crimes. And it is
specifically with these types of crimes, that is, materially defined crimes, that the question always
arises as to whether there is a causal link (or nexus) between X's conduct and the prohibited result
(for example, Y's death). It is sometimes very easy to determine that X caused Y’s death, for example,
if X stands in front of Y and shoots or stabs him in the heart. It is then easy to state for certain that X
caused Y’s death. However, in some situations, it is more difficult to determine whether X was the
direct cause of Y’s death. For example, X assaults Y and breaks her arm. Y is transported by ambulance
to the hospital, however, the ambulance crashes into a tree, and Y dies in the crash. In such
circumstances, could we still allege that X has caused Y's death? To cause someone’s death must be
seen as the actual act that caused the death of the particular person, or an act which hastened the
death of a that person.
Determining causation in situations such as described in the previous slide is one of the most difficult
questions in criminal law. However, the courts have developed certain basic principles concerning this
matter, which they regularly apply. The basic principle relating to causation applied by the courts is
the following: In order to find that there is a causal link between X's act and the prohibited condition
(hereafter referred to as Y's death) (that is, in order to find that X's act caused Y's death), two
requirements must be met: first, it must be clear that X's act was the factual cause of Y's death;
secondly, it must be clear that X's act was the legal cause of Y's death. X's act is the factual cause of
Y's death if it is a conditio sine qua non for Y's death, that is, if there is "but-for causation" or a "but-
for" link between X's act and Y's death. (We will explain this in a moment.) If this requirement has
been met, we may speak of factual causation. X's act is the legal cause of Y's death if, in terms of policy
considerations, it is reasonable and fair that X's act be deemed the cause of Y's death. If this
requirement has been met, we may speak of legal causation. X's act is the factual cause of Y's death if
it is a conditio sine qua non for Y's death. Conditio sine qua non literally means "a condition (conditio)
without (sine) which (qua) not (non)"; in other words, an act without which the prohibited situation
would not have materialised. A convenient English equivalent of this concept is but-for causation (or,
more precisely, but-for not causation). For an act or event to be a but-for cause, we must be able to
say that if it was not for the occurrence of the act or event, the prohibited condition would not have
happened. Accordingly, an act is a conditio sine qua non for a situation if the act cannot be thought
away without the situation disappearing at the same time. In the Daniëls case, X shot Y in the back
with a revolver. Y fell to the ground but was not killed. However, he was wounded seriously enough
to die if he did not receive medical treatment within 30 minutes. Shortly after Y fell to the ground, Z
appeared on the scene and shot Y in the ear. X and Z had not previously agreed to shoot Y – in other
words, they acted independently of each other. Z's shot of shooting Y in the ear was the immediate
cause of Y's death, and there was no doubt that there was a causal link between Z's shot and Y's death.
The question was whether X also caused Y's death. The court held that X's act was indeed a factual
cause of Y's death - if X had not shot Y in the back, and Y would not have fallen to the ground, and Z
would not have had the opportunity to shoot Y in the head. The court held that X was also a legal
cause of Y’s death as there were no policy considerations exonerating X from liability for what had
resulted in accordance with his intention. We will mention the Daniëls case later on again.
The second criterion which we must apply to limit the wide range of possible causes of Y's death is
usually described as the test to determine legal causation. The idea behind this second criterion is the
following: When a court is called upon to decide whether X's conduct caused Y's death, the mere fact
that X's conduct is the factual cause of Y's death is insufficient as there may be other factors besides
X's conduct that may equally qualify as factual causes of Y's death. A court will thus eliminate those
factors that, although they qualify as factual causes of Y's death, do not qualify as the cause of Y's
death according to the criteria for legal causation. In determining legal causation, a court is first guided
by policy considerations. The policy that the courts adopt is to strive to reach a conclusion that would
not exceed the limits of what is reasonable, fair and just. In deciding what a reasonable and fair
conclusion is, a court may make use of one or more of the specific theories of legal causation, however,
the courts do not single out a specific theory of legal causation as the only correct one to be applied
in all circumstances. The three most important theories to determine legal causation are the following:
the individualisation theories, the theory of adequate causation and the novus actus interveniens
theory. According to the individualisation theories, we must look, among all the conditions or factors
that qualify as factual causes of the prohibited situation (Y's death), for that one that is the most
operative and regard it as the legal cause of the prohibited situation. The objection to this approach
is that two or more conditions are often operative in equal measure, for example, where X bribes Z to
murder Y, or as seen in the Daniëls case discussed above. Because of the vagueness of the
individualisation theories, some writers prefer to make use of the generalisation theory or the theory
of adequate causation. According to this theory, an act is a legal cause of a situation if, according to
human experience, in the normal course of events, the act has the tendency to bring about that kind
of situation. Such an act must typically bring about the result in question, for example, if you strike a
match to some dry wood, a fire will result. However, this theory also has its flaws, for if X lights a
candle in his house, but the dog knocks the candle over resulting in the burning down of his house,
that was not a typical result of merely lighting a candle. The last theory we will examine is the novus
actus interveniens, which means a “new intervening event" and is used to indicate that between X's
initial act and the ultimate death of Y, another event which breaks the chain of causation has taken
place, preventing us from regarding X's act as the cause of Y's death. An act is a novus actus
interveniens if it constitutes an unexpected, abnormal or unusual occurrence; in other words, an
occurrence that, according to general human experience, deviates from the normal course of events,
or that cannot be regarded as a probable result of X's act. We have already provided you with an
example of a novus actus interveniens above, that is, where X assaults Y and breaks her arm. Y is
transported by ambulance to the hospital, however, the ambulance crashes into a tree, and Y dies in
the crash. Although X is the factual cause of Y’s death, he cannot be the legal cause of her death as
there is a novus actus interveniens (the ambulance crash) that breaks the chain of causation.

In this slide, we will provide you with some examples of the courts’ approach to legal causation. In the
decision of Grotjohn 1970 (2) SA 355 (A), X provided his crippled and very depressed wife with a loaded
rifle so that she could shoot and kill herself, should she wish to do so; this she then did. Although X
was acquitted, on appeal on a question of law, the Appellate Division held that the mere fact that the
last act causing the victim's death was the victim's own, voluntary, non-criminal act did not necessarily
mean that the person handing the gun to the victim was not guilty of any crime. If Y's final act is the
realisation of the very purpose X had in mind, Y's act of shooting herself cannot be regarded as a novus
actus interveniens. We have already discussed the Daniels case in a previous slide, so we will not
repeat the information here again. In Mokgethi 1990 (1) SA 32 (A), X shot a bank teller (Y) in the back
during a robbery, as a result of which Y became a paraplegic and was confined to a wheelchair. Y's
condition improved to such an extent that later he resumed his work at the bank. His doctor instructed
him to shift his position in the wheelchair regularly in order to prevent pressure sores from developing
on his buttocks. He failed to shift his position often enough, with the result that serious pressure sores
and accompanying septicaemia developed, causing his death. He died more or less six months after
he had been shot. The court decided that the wounding of Y had been a conditio sine qua non of his
death, but that it could not be regarded as a legal cause of his death. The court applied policy
considerations to the facts and found that Y's own unreasonable failure had been the immediate cause
of his death and that X's act had been too remote from the result to lead to criminal liability. Therefore,
X was found guilty of attempted murder only.
In Tembani 2007 (1) SACR 355 (SCA), X had been convicted of murder on the basis on the following
facts: X had shot the victim (Y) twice with the intention to kill. Y was seriously injured and admitted to
hospital on the night of the shooting. The medical personnel cleaned the wounds and gave her
antibiotics. The next day she vomited and complained of abdominal pains. However, Y was
nevertheless left insufficiently attended to in the ward, and four days later contracted an infection.
Only at that stage was she treated sufficiently. However, it was already too late to save her life. She
died 14 days later of septicaemia, resulting from the gunshot wounds. X appealed against his
conviction of murder. It was clear to the court that X was the factual cause of Y’s death, but in deciding
whether X was also the legal cause of Y’s death, the court had to consider whether negligent medical
care can be regarded as a new, intervening cause (a novus actus interveniens) that exempts the original
assailant (X) from liability? Can X, who deliberately inflicts a wound that would be fatal without
treatment, escape liability for the Y's death because the medical treatment that she received was
substandard and negligent? The court answered “no”. In the court's view, it was irrelevant whether
the wound was readily treatable, and even whether the medical treatment given later was
substandard or negligent. X would still be liable for Y's death.
The only exception would be if Y had recovered to such an extent at the time of the negligent
treatment that the original injury no longer posed a danger to her life. This decision was justified by
two policy considerations: Firstly, an assailant who deliberately inflicted an intrinsically fatal wound
knowingly embraced the risk that death might ensue. The fact that others might fail to intervene to
save the injured person did not, while the wound remained fatal, diminish the moral culpability of the
perpetrator. Secondly, in a country where medical resources were not only sparse but also badly
distributed, it was wrong to impute legal liability on the supposition that efficient and reliable medical
attention would be accessible to a victim, or to hold that its absence should exonerate a perpetrator
inflicting an intrinsically fatal wound from responsibility for the victim's death. The court held that in
South Africa, improper medical treatment was neither abnormal nor extraordinary. Therefore,
negligent medical treatment did not constitute a novus actus interveniens that exonerated the
assailant from liability while the wound was still intrinsically fatal. The only exception as stated above
is of course if Y recovered from the original injury (the shooting injuries) to such an extent that these
injuries did not pose a danger to her life – if Y then suffers an injury in hospital and dies, X will not be
held liable for murder, but only for attempted murder. And that is the end of this Learning Unit! As
the concepts dealt with in this section are quite difficult, we would advise you to read the Study Guide
thoroughly, especially the examples provided as well as he activities and their feedback. Remember
also that if you have any queries on the content of the lecture, to please contact your lecturers who
are readily available to assist you.
Just to say again - the notes used in the lecture are merely supplementary (i.e., in addition) to your
prescribed material of which your study guide remains the primary source from which to study!

Thank you for attending this lecture! Have a good week and see you at the next session! Goodbye!