MS STAROSTA’S CLASS

CRIMINAL LAW
LAWS2014A/3040A/3053A

CAUSATION
LEGAL CAUSATION
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GENERAL

`Remember we previously stated that the purpose of legal causation is to narrow the
scope of liability and to establish the sufficiently closest cause of the unlawful
consequence.
`According to the case of [Mokgethi] this is done by having regard to a combination of
the traditional tests for causation (proximate cause, adequate cause and the nova causa
interveniens (NCI) tests) as well as other factors based on policy as informed by justice
and fairness.

FACTORS determining whether a nova causa interveniens interrupts the causal

sequence between the conduct of the accused and the unlawful consequence:

1. SUBJECTIVE FORESEEABILITY & INDEPENDENCE

`If the Acc did not foresee the event but should have (a reasonable person would have),
then the event cannot be an NCI because it would not be sufficiently abnormal or
unusual.
`Conduct of another or an event could also not be an NCI where it was specifically
planned or brought about by the Acc for the same reason as stated above.
`Thus, foreseeability negates the requirement that the NCI has to be “abnormal, unusual
or unsuspected” and it might have a bearing on whether it is sufficiently independent
of the Acc’s conduct.

In re S v Grotjohn ‘70
`We have previously looked at this case from a factual causation perspective.
`The question pertaining to legal causation would be: whether the wife’s suicide could
be an NCI breaking the chain of causation between the wife’s death and the husband
handing her the gun?

HELD:
`There can be no doubt that the act of another which is the immediate cause of death
(NCI) interrupts the causality of the Acc’s act BUT, to have this effect, the NCI must
be an independent act, totally unconnected, with no relationship to the act of the
Acc.
`This would not be the case where the Acc brought about the NCI or could foresee it or
if it could be forseen by a reasonable person.
`Suicide whilst personal and arguably independent is not unusual or unsuspected if the
Acc specifically provided the means.

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NB: Consider if your answer would be different from a causation perspective had the
wife always threatened suicide but never went ahead with it, despite having
reasonable access to the husband’s gun but in a situation where he did not
specifically hand it to her. Would the suicide be an NCI then? How would your
answer be different had the wife retrieved the weapon from a safe to which she
knew the combination versus if the gun was just lying around the house? Policy
might dictate different outcomes depending on the facts.

2. CONDUCT OR OMISSION ON THE VICTIM’S PART INCLUDING

PRE-EXISTING CONDITIONS AND SUSCEPTIBILITIES
`Pre-existing conditions can never be an NCI. The Accused “takes his victim as he finds
him”, this is the basis of the thin-skull rule.
`The thin skull rule applies to both physical and mental pre-conditions (Blaue) and thus even
unusual religious convictions cannot serve as an NCI in favour of the Acc.
`Ultimately, a pre-existing condition which operates or combines to cause death can never
be said to be independent of the Acc’s conduct because the Acc takes his victim as he finds
him, pre-conditions and all.

R v Loubser ‘53
`Acc wounded the deceased on the head with a stick. Despite advice from employer, Acc
who was not a well-educated man neglected to go to the hospital and merely bandaged
wound with a dirty rag.
`Acc argued that the deceased’s conduct was an NCI.

HELD:
`The Acc was the LC of death because:
• The wound was intrinsically dangerous (not independent of the Acc’s conduct);
• According to normal human experience, a dirty stick can cause tetanus, this can
happen even in the absence of negligence by the victim (adequate cause test is met);
• Since the deceased was not well educated, him failing to seek assistance was not
especially unusual or unsuspected (take the victim as you find him).

R v Blaue ‘75 (English case)

`Acc inflicted stab wounds on a young girl. One wound penetrated the lung causing
extensive bleeding which required blood transfusion.
`Victim and parents refused a blood transfusion on account of their religious beliefs
(Jehovah’s Witnesses). The victim died.
`On a charge of CH, Acc argues that refusal of blood was an NCI interrupting the chain of
causation between his conduct and the unlawful consequence (death).

HELD:
`You take your victim as you find him/her. This principle covers the whole man, not merely
physical susceptibilities but also their mental makeup.
`One cannot state that a recognised religious practice is “abnormal or unusual”.

NB: Consider a scenario where an Acc wounds a traditional person who

seeks assistance from a traditional healer and not the hospital. In the
absence of negligence on the part of the traditional healer, would the
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 Acc still be the cause of death even though the victim ought
reasonably to have sought more drastic medical intervention in a
hospital?

Also, keep in mind that in both scenarios, the victim’s choice is not
independent of the Acc’s conduct and as such, is never likely to be
an NCI even if it is particularly unusual.

S v Mokgethi ‘90
`The deceased was shot by the Acc during an attempted robbery of a bank at which the
deceased was employed.
`The deceased was rendered a paraplegic bound to a wheelchair.
`After medical treatment, deceased improved and resumed work at the bank.
`About 4 months later, he was re-admitted to hospital with serious pressure sores and
septicaemia which developed due to his failure to shift his weight as he had been advised to
do by doctors.
(Essentially, a healthy person will feel pain if seated in one position too long. A paraplegic
cannot feel lower part of body, the lack of blood supply from not shifting position will cause
pressure sores which may become infected and infection moved into the bloodstream).
`The deceased died about 6 months after the original shooting from septicaemia.
`Acc was convicted of murder by the trial court on the basis that the failure to look after
himself was not completely independent of the Acc’s conduct even though it was
unusual/abnormal since doctors had specifically warned the deceased of this.

ON APPEAL HELD:
`Appeal court set aside the conviction and replaced it with attempted murder.
`Court confirmed that legal causation is established by proving a sufficiently close
connection between the Acc’s conduct and the unlawful consequence.
`That a single test or factor does not establish legal causation; rather, it is determined by a
totality of factors based on policy which underpins reasonableness, fairness and justice.
`The various existing tests are mere factors to be weighed in determining whether there was
a sufficiently close connection.
`As a general rule, merely wounding a victim would not be the legal cause of death where:
1. Failure to obtain treatment was the immediate cause of death (victim’s conduct was
the proximate cause);
2. The injury wasn’t inherently mortal (the Acc’s conduct was not the adequate cause);
3. The failure was objectively unreasonable in light of the character and principles of
the victim, their sophistication and outlook on life etc. (the victim’s conduct was
unusual or abnormal)
`In this case:
1. The proximate cause of death was the victim’s own conduct (omission);
2. The initial fatality of the wound was altered by treatment;
3. Failure to shift position was objectively unreasonable. The victim was well educated,
worked at a commercial bank and there were no other factors which would have
made his conduct reasonable.
`Accordingly, the Acc was not the legal cause of death and the deceased’s own conduct
(omission) was an NCI.

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NB: This case is extremely important. Consider whether it would have been
decided in the same way if the Acc had been a member of the SAPS. What
if the victim were shot by a rogue bullet from a police officer responding to
the robbery in a situation where the police shot when it was not safe to do so.
Policy considerations *for instance the need from a delictual perspective to
hold the State accountable, may affect the way in which the traditional tests
for legal causation are applied or which is given more weight.