Study Unit 12 (CRW2601) – The effect

of intoxication and provocation on

liability
Key:
Text book

Case law

Legislation

Learning outcomes:
 Understand the effect of intoxication on liability, and whether the accused should:
o Be convicted of the crime she is charged with
o Or convicted under contravention of section 1 of Act 1 1988
 Understand the effect of provocation, and whether an accused can rely on it as an excuse in
cases of killing or assaulting another person

12.1 Background
Intoxication and provocation may play a role in respect of the following elements of a crime:

 Voluntariness of the act

 Criminal capacity
 Intention
 Negligence

12.2 Introduction
What we say here about intoxication from alcohol can be applied to other drugs, like dagga or opium
etc.

Discussed in Criminal Law 216-230

Discussion can be shown in this diagram

12.3 Involuntary intoxication
Intoxication brought about without X’s conscious and free intervention.

Involuntary intoxication is a complete defence.

X could not prevented the intoxication and therefore cannot be blamed.

12.4 Voluntary Intoxication

3 different situations can be distinguished:

1. Action Liberia in causa

2. Intoxication resulting in mental illness
3. The remaining instances of voluntary intoxication

12.4.1 Actio Liberia in causa

X does not have the courage to commit a crime and so becomes intoxicated in order to carry out the
crime.

In this case intoxication is no defence – is actually a ground for harsher punishment.

12.4.2 Intoxication resulting in mental illness

Delirium tremens can be a result of chronic alcohol abuse.

If this is the case, the rules of mental illness must be followed.

X is acquitted in terms of section 78(6) of the Criminal Procedure Act.

12.4.3 Remaining instances of voluntary intoxication

General
Normal drinking.

The “lenient” and “unyielding” approach to voluntary intoxication

2 opposing schools of thought.
 1. Unyielding – a community will NOT accept an act by a drunk person that would not be
accepted had that person been sober.
2. Lenient – If we apply the ordinary principles of liability there may be situations which could
let a person escape criminal liability. His is because they did not act voluntarily or lacked
capacity.

The law has swung to the lenient approach (which angered people), which prompted legislation in
1988.

12.5 Development of the defence of voluntary intoxication

The chronological sequence of decided cases is important!

12.5.1 The law before 1981

During this time intoxication was never a complete defence.

Courts used the specific intent theory.

 Crimes could be divided into 2 categories

 Those requiring specific intent (murder, assault)
 Those requiring ordinary intent

Specific intent crimes were demoted. Murder became culpable homicide and grievous bodily harm
became assault.

Criticism of this approach was that if someone was too drunk to form a specific intent, how could
they form any intent at all?

12.5.2 The law after 1981 – the decision in Chretien and the rules enunciated therein
Read in the case book: Chretien 1981 (1) Sa 1097 (A)

X, who was drunk, drove his car into a group of people standing on the sidewalk. 1 Person died and 5
were injured. X expected the people to see him coming and move. He was found guilty of culpable
homicide as he lacked intent.

Summary of legal points decided by the Appellate Division (Rumpff CJ) in Chretien
1. If a person is so drunk that they cannot move voluntarily, she cannot be found guilty.
2. In exceptional cases as a result of intoxication they can lack criminal capacity, and thus not
be criminally liable at all.
3. The specific intent theory is unacceptable and must be rejected. Which is why X could not be
convicted of common assault.
4. Went out of his way to emphasise that a court must NOT lightly infer that owing to
intoxication, X acted involuntarily or lacked criminal capacity.

Actio Liberia in causa and intoxication resulting in mental were not altered by this judgment.

As a result of the Chretien case, intoxication may have the following effects:

1. May mean requirement of a voluntary act was not complied with

2. May exclude criminal capacity
3. May exclude intention
12.5.3 The crime created in section 1 of Act 1 of 1988
Reason for legislation
Chretien resulted in intoxication becoming a complete defence.

Parliament enacted a provision in 1988 aimed at preventing a person raising the defence of
intoxication from walking out of court a free person too easily.

This was section 1 of the Criminal Law Amendment Act 1 of 1988

Different degrees of intoxication

Following degrees:

1. Least intensive – intoxication that has the effect of excluding the intention required for
conviction. Not sufficient enough to render her actions involuntary or exclude capacity, but
sufficient enough to exclude intention.
2. Situation where X is so intoxicated she lacks criminal capacity (but NOT render her act
involuntary).
3. X is so intoxicated she is not capable of performing a voluntary act.

Can a person be convicted in the following categories of intoxication?:

(a) Intention – cannot be convicted of the statutory offence

(b) Criminal capacity - Can be convicted
(c) Voluntary act – Can be convicted

Simplified version of contents of section 1

Read pg 179 and 180 of the study guide

Elements of crime created in section 1

The requirements for a conviction of contravening this section can be divided into 2 groups.

Group 1 (circumstances around the taking of alcohol):

 A1 consumption or use by X
 A2 of any “substance”
 A3 that impairs her faculties to such an extent that she lacks criminal capacity
 A4 while she knows that the substance has that effect

Group 2 (circumstances around the commission of the prohibited act):

 B1 the commission by X of an act prohibited under penalty

 B2 While she lacks criminal capacity and
 B3 Who, because of the absence of criminal capacity, is not criminally liable

You must be able to state the above bullet points in the exam!

This is the only provision in our law where the state needs to prove that the accused lacked capacity.

12.6 Intoxication and culpable homicide

If X raises the defence of intoxication for a murder charge, they will be charged with culpable
homicide – as they acted negligently.
12.7 The effect of intoxication on punishment
When X is convicted, her intoxication can be taken into account and result in more lenient
punishment.

Intoxication cannot result in more lenient punishment in a crime which intoxication is an element of
the crime. I.e Driving under the influence.

Nothing prohibits a court from using intoxication as aground for a harsher punishment.

12.8 Study Hints

Required to discuss:

1. Present legal rules relating to voluntary intoxication

2. Apply these rules to a set of facts

Don’t waste time on involuntary intoxication or action Liberia in causa, the specific intent theory,
and a discussion on the unyielding and lenient theories.

Discuss Chretien and how it was affected by section 1 of act 1 of 1988.

Don’t ignore the other types of intoxication (just don’t mention them when talking about voluntary
intoxication).

12.9 The effect of provocation on criminal liability

Read Criminal Law 230-235- study up to page 244 for the exam.

Summary

FACTS LEGAL CONSEQUENCES

X is so intoxicated that she is incapable
of committing a voluntary act – in other
words, her conduct takes place while
she is in a state of automatism resulting
from intoxication.
X is so intoxicated that she lacks criminal
capacity.
X is so intoxicated that she lacks the
intention required for a conviction.
On a charge of having committed a
crime requiring negligence (e.g. culpable
homicide), the evidence reveals that
X was intoxicated when she committed
In terms of Chretien, X is not guilty of
the crime with which she is charged.
She must, however, be convicted of
contravening section 1 of Act 1 of
1988.
Exactly the same as above.
In terms of Chretien, X is not guilty of
the crime with which she is charged,
nor can she be convicted of contravening
section 1 of Act 1 of 1988. However,
if X is charged with murder and
the court fi nds that she had criminal
capacity, she may, on the ground of
negligence, be found guilty of culpable
homicide (which is always a tacit alternative
charge to a charge of murder).
Intoxication does not exclude X’s
negligence; on the contrary, it serves
as a ground for a fi nding that X was
negligent.
 the act.
Despite her consumption of liquor, X
complies with all the requirements for
liability, including intention.
X is guilty of the crime with which
she is charged, but the measure of
intoxication may serve as a ground for
the mitigation of punishment. It may,
however, also serve as a ground for
increasing a sentence as, for example,
in a case of a person who knew, before
she started drinking, that alcohol
makes her aggressive.

As far as the effect of provocation on criminal liability is concerned, the effect may be as follows:

 Theoretically speaking, it may exclude X’s voluntary act. This will rarely occur in practice. See
the discussion of the Eadie decision in study unit 7, subsection 7.4.3.
 It may operate as a ground for the mitigation of punishment.
 It may reduce murder to culpable homicide on the basis that, as a result of intoxication, X
lacked the intention to kill, but was nevertheless negligent.
 It may reduce qualified assault to ordinary assault.
 If X is charged with common assault, the evidence of provocation cannot result in X’s being
found not guilty of the crime charged. The courts are unwilling to treat provocation as a
reason to completely acquit a person of common assault. This approach is based on policy
considerations and does not necessarily accord with legal theory.
 It may serve to confirm the existence of intention.