SPECIFIC OFFENCES:

SPOF 6212
UNIT 2: INCOMPLETE CRIMES
CHAPTER 8
INCOMPLETE (INCHOATE) CRIMES = are forms of conduct performed in anticipation of the commission of the main crime.

CATEGORIES OF INCOMPLETE CRIMES: 1.ATTEMPT

2.CONSPIRACY
3.INCITEMENT
ATTEMPT: A person can be guilty of attempt only if he had INTENTION to commit particular crime

Summary of rules relating to attempt:

1. A person is guilty of attempting to commit a crime if, intending to commit that crime, he unlawfully engages in conduct
that is not merely preparatory but has reached at least the commencement of the execution of the intended crime
2. A person is guilty of attempting to commit a crime, even though the commission of the crime is impossible, if it would
have been possible in the factual circumstances which he believes exist or will exist at the relevant time
 THEORIES OF PUNISHMENT AND ATTEMPT

RETRIBUTIVE THEORY = punishment for harm done – your just desserts But no harm done yet

Reason for punishing anticipatory conduct can be found in RELATIVE THEORIES especially

PREVENTATIVE REFORMATIVE
• Police far better to uphold law and protect • People who commit anticipatory
community if they may apprehend criminals who crimes are as much a danger to
have committed only acts which precede crime society as those who complete the
crimes therefore need to be
reformed
 DIFFERENT TYPES OF ATTEMPT
COMPLETED ATTEMPT INTERRUPTED ATTEMPT
• X’s actions are no longer
• X does everything he preparatory, but are in effect acts
can to commit the
of execution, when they are
crime, but for some
interrupted, so that crime cannot
reason, crime is not
be completed
completed
• i.e. X, meaning to commit arson,
• i.e. X shoots at Y but
pours petrol onto wooden floor,
misses; X poisons Y’s
but is apprehended by a police
food, and Y
official just before he strikes a
unexpectedly does
match
not eat it, or eats it
• X’s activities are interrupted before
but is saved by
he can succeed in completing the
medical intervention –
crime
X is guilty of attempt
• NOTE: if what X does is merely a
• Case: S v Phiri
preparation for the crime = no
attempt. If his acts were more, i.e.
acts of consummation = attempt
• Case: S v Schoombe
VOLUNTARY WITHDRAWAL ATTEMPT TO COMMIT THE
• X’s actions have IMPOSSIBLE
already reached the •
It is impossible for X to commit or
state when they
complete the crime, either because
qualify as acts of
(a) the means he uses cannot bring
execution, when X, of
about the desired result i.e. X,
his own accord,
intending to murder Y, administers
abandons his criminal
sugar to Y in the mistaken belief
plan of action
that it is poison or (b) because it is
• i.e. X, after putting
impossible to commit the crime in
poison into Y’s
respect of the particular object of
porridge but before
his actions i.e. X, intending to
giving it to Y, he has
murder Y while he is asleep in bed,
second thoughts and
shoots him in the head but Y has in
decides to throw the
fact died of a hear attack an hour
porridge away
before
• Case: S v Davies (when attempt to
commit impossible is punishable
 INTERRUPTED ATTEMPT CONTINUED:

• Examples of how our courts distinguish between an act of preparation (in which case X is not guilty
of attempt) and an act of consummation ( in which case X is guilty of attempt):
1. Acts of preparation:
• X merely prepares the poison which he means to administer to Y later when she is apprehended
• X asks to buy stolen clothes from Y, but X has had time only to look at the clothes when a
policeman arrests him
• X, in an attempt to steal a car, walks late at night, armed with a screw-driver, to a car, stands next
to the car, directs a flashlight at the car, but is apprehended by a policeman before she is able to
do anything to the car
• X, in an attempt to steal goods in somebody else's house, has only opened the cupboards and
thrown the contents thereof on the floor, when she was caught in the act
• X, in an attempt to commit house­breaking, has only stood outside a window and moved the
curtains, when she is apprehended
2. Acts of consummation:
• X trying to escape from custody, breaks the glass and wooden frame of the window in
her cell
• X trying to bread into a house, puts a key into a door
• X, trying to commit arson, arrange inflammable materials and fuel inside a building
• X, trying to rape Y, has as yet only assaulted her
• X, trying to steal from Y’s handbag, has only opened the handbag hoping the contents
will fall out
• X, attempting to possess dagga, drives to a place in a bush where an associate has left a
sack of dagga for her, leaves the care and walks to the sack
 VOLUNTARY WITHDRAWAL CONTINUED:

• NO punishable attempt if X voluntarily withdraws from his criminal plan of action before his
conduct constitutes the commencement of the consummation
• Question = whether withdrawal after this stage but before completion of the crime constitutes a
defence to charge of attempt
• According to courts: voluntary withdrawal after commencement of the consummation in NO
DEFENCE

• Reasons for decriminalising attempt if there was a voluntary withdrawal:

1. Firstly, the law ought to encourage prospective wrongdoers not to transgress.
• It cannot do this by punishing people who decide to abandon their criminal plans.
• The prospect­ive criminal should know that she will be rewarded if she voluntarily abandons
• her criminal project.
2. Secondly, voluntary withdrawal proves that X did not in fact
have the intention at all material times to complete her act
• in other words, X's intention was not so strong as to
"motivate" her to complete the crime.
• for a conviction of attempt to commit a crime the state must
prove that X had intention to commit the completed crime,
and not merely an inten­tion to attempt to commit the
crime.
 CASE LAW:
S v Phiri 2014 (1) SACR 211 (GNP) - attempted murder

• Appellant was employed as an HIV / Aids counsellor at a clinic run by Department of Health and knew that
Facts:
he was HIV positive.
• He developed a relationship with complainant after she had come to clinic to be tested.
• He knew she had tested HIV negative but then had unprotected sex with her.
• Convicted of attempted murder and sentenced to 6 years’ imprisonment

Legal
Was appellant correctly convicted of attempted murder?
question:

Court
• It was sufficient for a conviction on count of attempted murder to establish that appellant,
held:
knowing he was HIV positive, engaged in sexual intercourse with complainant, whom he knew to
be HIV negative, without any preventative measures.
• This entailed presence of mens rea in form of dolus eventualis.
• Conviction and sentence confirmed.
 R v Schoombie 1945 AD 541 - interrupted attempt

• S went to a shop in early hours of morning and poured petrol around and underneath the door, so that the
Facts:
petrol flowed into the shop.
• He placed a tin of inflammable material against the door, but his whole scheme was thwarted when, at that
moment, a policeman appeared.
• Convicted of attempted arson.

Legal
question: • Had the accused’s preparations gone so far that they could be regarded as an attempt to commit arson?

Court • Court confirmed that test to be applied in these cases was to distinguish between acts of preparation
held: and acts of consummation.
• Conviction of attempted arson confirmed.
 R v Davies 1956 (3) SA 52 (A) - attempt to commit the impossible

Facts: • Appellants convicted by trial court of attempted abortion.

• Crime of abortion can only be committed in respect of a live foetus.
• However, foetus, which appellants tried to abort was already dead.
• Appellants appealed against conviction.

Legal
question: • Could appellants be convicted of attempted abortion if foetus was already dead at time of act?

Court • Court held that it is immaterial whether the impossibility of achieving desired end is attributable to wrong
held: means employed by X, or to fact that object in respect of which act is committed is of such a nature that the
crime can never be committed in respect of it.
• Test = subjective – what law seeks to punish is not any harm which might have been caused by X’s conduct
but X’s ‘evil state of mind’ which manifested itself in outward conduct which was not merely preparatory,
but amounted to an act of execution.
• Conviction confirmed.
• The various theories relating to attempt may be divided into two groups, namely the subjective and objective
theories.
• The subjective theories place all the emphasis on X's intention.
• If she converts her evil thoughts into deeds by the lightest outward conduct, this is sufficient to render her liable
for attempt.
• According to the objective theories, mere intention is insufficient.
• There must be something more, which must necessarily be an objective or external requirement - thus it may be
required that this act must be dangerous or harmful.
• Neither a purely subjective nor a purely objective approach is consistently applied to all cases of attempt in South
Africa.
• In determining liability for attempt to commit the impossible our law has adopted a subjective approach
• whereas liability for interrupted attempt is determined by means of a test which is in principle objective (it
distinguishes between acts of preparation and acts of consummation). An objective criterion is also applied by the
courts if X volun­tarily withdraws from her criminal scheme
• In R v Schoombie and R v Stein the courts followed a more subjective approach whereas in the cases of
R v Sharpe and R v Nholvo courts followed a more objective approach.

THE SUBJECTIVE APPROACH:

• Two methods become obvious when applying the more subjective approach:
1. The "equivocality theory" where a deed is only regarded as attempt if the steps taken by the accused indicate
beyond reasonable doubt that he intended to attempt to commit the crime.
2. The consummation theory where a deed is only regarded as an attempt if the steps taken by the accused do
not leave room for further preparation acts, but unless it is interrupted, will result in the commission of the
crime
• For example : An accused can only be found guilty of attempt to commit the impossible if he has erred with
respect to the facts. Error of law does not create an attempt to commit the impossible because it lacks
unlawfulness.
• For instance, when a person thinks that adultery is still a crime, and he nevertheless commits adultery, he is not
found guilty of attempted adultery on the basis of error of law.
CONSPIRACY: • Conspiracy to commit a crime is punishable in terms of section 18(2)(a) of the
Riotous Assemblies Act 17 of 1956 – statutory crime
SECTION 18(2)(a): “any person who…
conspires with any other person to aid or • Can only be used if there is no proof that envisaged crime was in fact
procure the commission of or to committed
commit…any offence, whether at
common law or against a statute or • The charge and conviction must be : conspiracy to commit… (the certain crime)
statutory regulation, shall be guilty of an
offence…”

REQUIREMENTS FOR SUCCESSFULLY CHARGING AND CONVICTING A PERSON OF CONSPIRACY

1. ACT – entering into an agreement to commit a crime
• No conspiracy if one of the two parties only pretends to agree but in fact
• No conspiracy while parties still negotiating with each other
• Crime is complete as soon as parties have come to an agreement – not necessary for state to prove commission of
any further acts in execution of conspiracy
• Conspiracy and be express or tacit i.e. If, while X is robbing a bank, Y, who has not previously reached an agreement
with X, spontaneously associates herself with X's con­duct by facilitating matters for her, a tacit conspiracy between X
and Y will be construed only if X is prepared to accept Y's assistance. There can be no conspiracy if X does not want
to have anything to do with Y.
• A court may infer the existence of a conspiracy from persons' conduct, provided that the inference is the only
reasonable one to be drawn from the facts.
• Parties need not agree about exact manner in which come is to be committed
• Must be a definite agreement between at least two persons to commit a crime – same intention does
not mean conspiracy
• Conspirators need not be in direct communication with each other – it is not necessary for the one
conspirator to know the identity of all the other conspirators. Must however be aware of their
existence. i.e. X agrees with Y to commit a crime together with Y and Z, and Z in turn agrees with Y to
commit a crime together with X and Y – there is one conspiracy between X Y and Z
• Can only be a conspiracy if more than one party involved
2. INTENTION – must be intention to conspire with another and intention to commit a crime or further
its commission i.e. if X sells Y an article with she(X) knows will be used by Y to commit a crime, her
mere knowledge is not sufficient ground for conspiracy – a conspiracy may be construed only if a
court is satisfied that Y was also aware of X’s knowledge
3. PUNISHMENT – may be same punishment prescribed for commission of crime (but normally less
severe)
INCITEMENT: • Incitement to commit a crime is punishable in terms of section 18(2) of the
Riotous Assemblies Act 17 of 1956 – statutory offence
• Section provides: “any person who…incites , instigates, command or
procures any other person to commit any offence, whether at common law
or against a statute or statutory regulation, shall be guilty of an offence and
liable on conviction to punishment to which a person convicted of actually
committing that offence would be liable for”
• Can only be used if there is no proof that the crime to which he incited Y
was in fact committed
• Charge and conviction must be : incitement to commit… (the crime)
• Purpose = to discourage people from seeking to influence others to commit
crimes
• Can be committed even in respect of police trap
 REQUIREMENTS FOR INCITEMENT:

1. ACT OF INCITEMENT
• The crux of the act of incitement is that X comes into contact with Y and influences or seeks to influence Y verbally
• or by conduct to commit a crime
• An inciter = someone who reaches out and seeks to influence others to commit crime
• Incitement is a purely formally defined crime in the sense that the crime is completed the moment X influences Y in
some or other way to commit the crime – no causal relationship between X’s words and any subsequent action by Y
is required – X’s liability does not depend on whether she (X) indeed managed to influence Y to commit the crime
• Act of incitement can be explicit or implied – i.e. of implied = a prostitute makes a certain move with her body in
order to incite a man to sexual intercourse
• Example of explicit = X suggests to Y that Y should commit a crime; or requests, instructs, encourages, implores,
persuades, or hires Y, puts pressure on Y; or bribes Y
• Element of persuasion not required – i.e. an initial unwillingness on the part of Y which is overcome by argument,
persuasion or coercion
• If incitement does not come to Y’s knowledge – X can only be convicted of attempted incitement
2. INTENTION
• Cannot be committed negligently
• Intention required
• Dolus eventualis sufficient

3. PUNISHMENT
• May be same as punishment prescribed for commission of crime (but normally less severe)
 CASE LAW
Economic Freedom Fighters v Minister of Justice and Constitutional Development 2019 2 SACR 297 (GP)

• 2 applications where brought before the court by applicants: the first declaring s18(2) (b) of RA Act is in
facts: conflict with the Constitution and therefore invalid and the second was the seeking of a declaratory order
that constitutionally s1(1) of Trespass Act does not apply to occupiers of land protected by the Extension of
Security of Tenure Act and the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act
• The applications were heard together and arose out of 3 related charges laid against the second applicant,
Mr Malema on the 16 December 2014, 26 June 2016 and 7 November 2018 – all three charges are
materially identical
• The most recent charge reading : the accused unlawfully and intentionally incited, instigated, commanded
or procured his EEF followers and/or others to commit a crime to wit: trespass in contravention of s1(1) of
Trespass Act by illegally occupying vacant land wherever they found same and thereby committing the
crime of incitement
• Applicants challenge constitutionality of RA Act – argued s18(2)(b) of RA Act should be declared
unconstitutional as it criminalises the exercise of free expression protected by s16 of the Constitution and is
an unjustifiable limitation on the right to freedom of expression

• whether s18(2)(b) of RA Act was unconstitutional as it unjustifiably and unreasonably infringed on the
Legal question :
right to freedom of speech guaranteed and protected in s16 of Constitution
• Whether the interpretation of s1(1) of Trespass Act did not apply to occupiers of land protected by EST
Act and PIE act
Court held: • Whilst the provisions of s18(2)(b) infringe s the right to freedom of expression, such an infringement is
reasonable and justifiable in light of the limitations clause (s36).
• This is because the restriction on freedom of speech arsing out of the application of this provision is
merely a prohibition on influencing the minds of others to commit acts that our law already considers
to be unlawful
• Court held purpose of provision was to prevent commission of crimes

On appeal Constitutional • Majority of CC took different view

Court held: • Held that the infringement on the right to freedom of expression, protected in s16
of Constitution, inherent in the fact that s18(2)(b) criminalized incitement to
commit “any offence” was not justifiable.
• Whilst majority recognised need for incitement offence they chose to read in the
“serious” to the section
• Result = incitement can now only be committed in relation to “serious”offences.
• This remedy enables the provision to still exist until the legislature redrafts it make
it constitutionally compliant