CRIMINAL CAPACITY

OUTCOMES
 discuss the relationship between criminal capacity and
culpability or mens rea;
 set out methods to ascertain criminal capacity with reference
to the method which is followed by criminal courts
 set out in the test for criminal capacity with reference to
sections 78 (1) and 79 of the Criminal Procedure Act, 51 of
1977;
 answer short questions like the following with regard to the
first leg of criminal incapacity:
 must the source of mental illness lie in the mind of the
accused?
 what is the effect of lucidum intervallum on criminal
capacity?
 how does a court ascertain whether or not an accused suffers
from a mental defect?
 write notes on the distinction between a defence based on
automatism and a defence based on mental illness.
Prerequisite

 Before culpability can be considered, it

must be clear that the perpetrator had
criminal capacity at the critical moment
when he performed the relevant act.
Criminal Capacity
 Prerequisite

Is
Criminal Capacity

For
Culpability or
Mens Rea

Consisting of

Intention

Negligence
 Quizzzzzz!!!
What is criminal
capacity?

What is culpability?
 Test for criminal capacity
 S 78(1) and 79 CPA
 In court?
 Difference between mental illness and mental defect [intellectual
disability]?
 no stipulation of differences
 In practice, look at expert evidence
of a psychiatrist.
Possible explanation
 Mental defect [intellectual disability] :
abnormally low intellect already at an early
stage and is of a permanent nature.

 Mental illness: manifests later in life and is

not of permanent nature.
 not necessary to prove that origin lies in the
mind.
Lucidum Intervallum

 What is the effect of

lucidum intervallum on
criminal capacity?
 Quizzzzzz!!!
How does a court ascertain
whether or not an accused
suffers from a mental
defect?
 Mental illness and automatism

 Burden of proof?
 Basis for non-liability?
 If defence is successful, what will happen?
 Mental illness or defect
S 77, 78 and 79 CPA
 Successful defence of mental illness
 detained and treated
 treated as a out-patient
 released subject to certain conditions
 released unconditionally
 Serious offences?
Diminished criminal capacity

S 78(7) CPA
Sentence
 Incapacity to stand trial

 Court cannot try a mentally ill person.

 Mentally ill during commission of crime and mentally ill at time of trial.
 Separate procedures
 Procedures

 Time of trial  Time of crime

 S 77 &79  S 78
  As discussed in SU 5.1
if not mentally ill trial
proceeds as normal
 If not, orders ito S77(6)
 Serious offences?
 Immature age

 0-11 (infantes) –never guilty

 12-14 (impubes) –rebuttably presumed to
lack criminal capacity
 14 and older –rebuttably presumed to have
criminal capacity
 Cannot even be convicted as an
accomplice
 Test
12-14
 Same test for criminal capacity
 What is it?
 That is the way it is applied in courts
 Rebutting the presumption

 Proof that the child could distinguish between right and

wrong is not enough
 the child knew that what he was doing was wrong within the
context of the facts of the particular case.
 Non-pathological criminal incapacity

 It could also be caused by other factors such as emotional distress,

provocation, shock, dissociative amnesia or by a combination of such
factors.
 Usually can’t remember.
 Acquitted and released.
 It is advisable for the defence to succeed to lay the necessary foundation
by way of expert and factual evidence.
S v Eadie 2002 1 SASV 663
(HHA) ????
DISCUSS
Quizz
 Prof Hadenough gets very little sleep due to the fact that his new born
baby cries right through the night. Furthermore his office has a view on
the subway of the Potchefstroom-Campus where first year students
repeatedly sing the same songs day in and day out. One afternoon Prof
Hadenough loses his self-control and throws his cellphone into a group of
singing first year students. His cellphone hits Sannie Singer and leaves
her bleeding from her head. Prof Hadenough is charged with assault. He
however alleges that he was so angry and tired that he was unable to
prevent himself from acting in the way he did. Discuss the possible
criminal liability of Prof Hadenough with reference to the judgement S v
Eadie delivered by the SCA.
Answer
 In S v Eadie the appellant killed the deceased with a hockey stick after a road
rage incident. He pleaded not guilty, his defence being that of non-
pathological criminal incapacity. The court found that the state is supported
with the assumption that a mentally fit person acts voluntary and has criminal
capacity. The person who suggests the defence must lay a basis for it. The
court must scrutinize the evidence carefully and take all surrounding
circumstances into account also the behaviour of the accused after the
incident. With criminal capacity the question is whether the accused could
differentiate between right and wrong and act in accordance with such
believe. According to Eadie such a defence will only succeed if the accused
was provoked in such a manner that he actually acted involuntary. Hence the
court said it is no different to that of sane automatism. This defence is
extremely difficult to prove. It will only happen in exceptional circumstances.
In the light the facts mentioned above it is clear that the chances of Prof
Hadenough’s defence succeeding is very slim especially because his actions
were purposeful.
Also look at S v Ramdass 2017 (1)
SACR 30 (KZD)
 Intoxication
 Chretien
 involuntary
 if so, no criminal capacity
 if so, no intention
 More lenient sentence.
 Involuntary Intoxication
 complete defence
 Actio libera in causa
 intoxication resulting in mental illness
 building up courage.
 mitigation of punishment
 Provocation