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CRIMINAL LIABILITY
General Requirements for Liability – Elements of a crime

1. Legality
2. Conduct
3. Definitional elements of crime
4. Unlawfulness
5. Culpability (Fault)
6. Capacity?
DEFINITIONAL ELEMENTS
1. Compliance with the definitional elements
- Once it is clear that there was an act or omission (conduct) on the
part of X, the next step in the determination of criminal liability is to
investigate whether the conduct complied with the definitional
elements of the crime with which X is charged.
What do we mean by definitional elements? NB
- It is the concise description of the requirements set by the law for
liability for the specific type of crime with which X is charged, as
opposed to other crimes.
DEFINITIONAL ELEMENTS
• The definitional elements contain the model or formula with the aid
of which both an ordinary person and the court may know what
particular requirements apply to a certain type of crime.
• It also determines which respects the particular crime differs from
other crimes
• “whoever does ‘A’, commits a crime” – ‘A’ represents the definitional
elements of the particular crime
• Definitional elements not merely limited to an ‘act’ or ‘conduct’ – but
it is wide enough to include conduct e.g sexual penetration,
possession, the making of a declaration or the causing of a situation
CONTENTS OF DEFINITIONAL
ELEMENTS
• Definitional elements do not merely refer to the kind of act (possession,
sexual intercourse) : NB
- but also of the circumstances in which the act must take place e.g the
way in which the act must take place (“violently” in robbery)
- The characteristics of the person committing the act (e.g somebody
who owes allegiance in high treason)
- The nature of the object in respect of which the act must be
committed
- The particular place where the act has been committed
- A particular time when or during which the act has to be committed
Definitional elements and unlawfulness
• Fulfilment of definitional elements should not be confused with the
requirement of unlawfulness.
• Before an act can be described as unlawful, it must not only conform
to the definitional elements but it must also comply with the quite
distinct criterion for determining unlawfulness.
• The definitional elements contain at least the minimum requirements
for liability necessary to constitute a comprehensible and meaningful
criminal norm
• (Further reading on pg 61)
Intention as part of the Definitional elements
a) Crimes of double intention –crimes where, apart from the intention
to commit the act, an intention to achieve some further aim by
means of the act is required.
- One can determine whether the act is unlawful only if it is clear that
through his act, X intended to achieve further aim.
b) Crimes requiring a certain characteristic intention – further
evidence of the existence of subjective requirements in the
definitional elements may be found in the construction of certain
other crimes which require a certain characteristic intention.
Intention as part of the Definitional elements
c) Crimes of attempt – that X’s intention should form part of the
definitional elements becomes equally clear if one considers attempts
to commit a crime
d) Possession – animus or intent
e) Remaining crimes
CAUSATION
• Important to distinguish between formally and materially defined
crimes.
• Formally defined crimes (circumstance) = certain type of conduct is
prohibited irrespective of the result of such conduct
• Materially defined crimes (consequence) = any conduct which causes
a specific condition

• Where does causation fit in?

CAUSATION
• In materially defined crimes = the question must always be answered whether X’s act
caused the prohibited situation or state of affairs or
- Whether there was a causal link (nexus) between X’s conduct and the prohibited situation

Determining causation in a case of murder or culpable homicide?

- It must be remembered that to “cause the death” actually means to cause the death at a
time when, and the place where, Y died.
- All people die at some time; therefore to ask whether the act caused the death is in fact
to ask whether the act precipitated the death.
- The fact that Y suffered from an incurable disease from which he would shortly have died
in any event, or that Y would in any event have been executed a mere hour later does not
afford X a defence
Factual and Legal Causation
• S v Daniels 1983 (3) SA 275 (A) - NB
- AD delivered judgment in Daniels and laid down certain principles relating to the
determining of a causal link.
- Courts have confirmed that in order to determine whether certain conduct has
caused a certain prohibited condition (Y’s death). Two requirements must be met.
- First, one must determine whether the conduct was a factual cause of the
condition (factual causation)
- Secondly, determine whether the conduct was also the legal cause of the
condition (legal causation)
- Only if both factual and legal cause of the condition can a court accept that there
has been a causal link between the conduct and the condition
Factual Causation
• Factual causation = condictio sine qua non (NB)
- What would have happened if A’s conduct had not taken place, would
the result nevertheless have ensued, so called ‘but for’ test?
- Conduct is therefore a conditio sine qua non for a situation if the
conduct cannot be thought away without the situation disappearing
at the same time.

Example 1:
•A gives B poison which is very slow to take effect and before the poison takes effect, B has a heart
attack and dies of natural causes. Question: Is there a causal link between A’s conduct and B’s death
factual causation?
Factual Causation
Answer:
Think away A ‘s conduct, and ask: would B have died? If the answer is ‘yes’, then A cannot be held criminally
liable for B’s death because NO causation/link between A’s conduct and B’s death.

Example 2:
A shoots B in the shoulder and on the way to the hospital, the ambulance doors open and B ends up
in the road and is killed by a truck? Is there a causal link between A’s conduct and B’s death factual
causation?

Answer:
Think away A’s conduct, would B have died? If the answer is ‘no’, then the conduct of A is the factual cause of
the consequence or result of B
Legal Causation
Is the first enquiry, factual causation the only enquiry you apply in
court? Why not?
No, the first enquiry regarding factual causation must be limited by a
second enquiry, namely an enquiry regarding legal causation which is
based on policy considerations otherwise if only the first inquiry, factual
inquiry is applied, every accused will be found guilty.
&
II. Secondly: Establish legal causation by looking at policy issues and
by asking: Is it reasonable or just or fair to regard the conduct of A as
the cause of the forbidden situation of B?
Legal Causation
• What criterion may be applied to determine whether an act which is a
factual cause of the prohibited situation also qualifies as a legal cause of
the situation?
• Answer lies on the theories of causation

S v Mokgethi 1990 (1) SA 32 (A)

- AD held that it is wrong to identify only one of these theories as the correct one to
be applied in all cases and in so doing to exclude from consideration all other
theories of legal causation.
- One should apply a flexible criterion: the overriding consideration in the
determination of legal causation is the demands of what is fair and just; in
endeavoring what is fair and just conclusion, however, a court may take into
consideration the different legal theories of legal causation.
Theories of Legal Causation
i. Actus novus interveniens - NB
How is the actus novus interveniens test/theory applied?
By asking: was there a ‘new’ unsuspected or unusual or abnormal intervening (subsequent) event that served to break
the chain of causation between the conduct and the result?
 This ‘new’ act is a completely independent act that has nothing to do with the conduct of A and bears no relationship
with the conduct of A.
 When will an event be abnormal/unusual/unsuspecting? The ‘new’ subsequent act, according to general human
experience, deviates from the ordinary course of events and cannot be regarded as a probable result of A’s conduct.

Ex parte die Minister van Justisie; in re S v Grotjohn 1970 (2) SA 355 (A)
- Later event can be deemed to have broken the causal link only if it is a completely independent act, having nothing to
do with and bearing no relationship to X’s act.
- A reasonable inference to be drawn from the examples in our case law is that an event can be a novus actus
interveniens only if it is an unsuspected , abnormal or unusual event, in other words one which, general human
experience deviates from the ordinary course of events and cannot be regarded as a probable result of X’s act.
- Viewed thus, there is practically no difference between the test to determine a novus actus interveniens and the test of
adequate causation
Theories of Legal Causation
ii. Adequate cause test:
 How is the adequate test applied?
 By determining whether an act, according to human experience, would in the normal course of events, have
resulted in the prohibited consequence.
 A consequence/result is not regarded as causally related to a preceding act if it arose in an unusual or
unexpected way.
 Snyman: the actus novus interveniens is a negative test: was it not for the abnormal happening, then A
would have been guilty?
 Snyman favours the adequate test. The test/theory originates from the German (European) law.
Theories of Legal Causation
iii. Proximate cause or individualisation test/theory
The proximate test (or proximate theory of legal causation) means that one must
look for the ONE single individual cause that resulted in the prohibited situation.
For example 3 people together decide to kill someone, only 1 accused may be
held liable?
The proximate test was rejected in the Daniels case.

iv. Combination theory/test

A broad, general test/theory based on a combination of tests/variety of public
(legal) policy factors or considerations.
Case discussion : Daniels case
•Facts of the case:
Accused 1 and 2 were passengers in a taxi driven by the victim (deceased). The deceased was instructed to turn
of the main road and stop the vehicle. Accused 1 and the deceased got out of the car and exchanged words.
When accused 1 produced a gun, the deceased ran away.
Accused 1 fired and shot the deceased in the back. The deceased fell on the ground. Accused 2 came to the
deceased and fired a shot in the ear of the deceased.
The post mortem (J 88) showed that the deceased died immediately as a result of the bullet wound to the ear.
Had Accused 2 not shot the victim, the victim may have survived but only if the deceased got medical
treatment within half an hour which due to the remoteness of the location would not have happened.
Both accused 1 and 2 were charged with murder.
The trial court convicted both accused 1 and 2 for murder. The case went on appeal.
Case discussion : Daniels case
•Legal question:
Did the conduct of accused 2 break the causal link between accused 1 and the death of the victim.

Judgment regarding the legal question:

•Majority of the 5 judges: The two accused acted separately from each other and therefore causation must be
established.
•Accused 1 was found guilty on murder but accused 2 was acquitted.
•The deceased was dying when accused 2 shot him. Were the accused not dying, the outcome may have been
different.
Case discussion : Daniels case
•Relevance of the case?
•Judges agreed that factual and legal causation must be established.
•Which test must be applied to establish legal causation?
•Proximate cause theory got a lot of criticism.
•Court looked at the novus actus interveniens and adequate cause theories.
•Snyman says the court did not favour any specific test.
•Burchell: looks like novus actus inverveniens was applied: did accused 2’s conduct comprise a supervening
event – No, the deceased was on an isolated road and would have died.
Additional cases
• R v Makali 1950 (1) SA 340 (N)

 S v Counter 2000 2 SACR 241 (T)

 S v Counter 2003 1 SACR 143 (SCA)