South African criminal law
In the definition of Van der Walt et al., a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted.
'"[7] Because "the various theories of punishment all contain positive and negative aspects,"[14] an "obvious approach should therefore be a well-balanced combination of the elements that are best suitable in terms of the interests of society, the individual offender and the nature of the crime.
"[20] The court in S v Salzwedel[21] held that among the aggravating factors to be considered in sentencing was racial motivation in the commission of a serious offence, because racism subverted the fundamental premises of the ethos of human rights which now, after the negotiated settlement, permeated South Africa's processes of judicial interpretation and discretion.
In order properly to combat hate crimes, decision makers in the criminal justice system should be attuned to the fact that the effects go far beyond the victims, serving to traumatise whole communities and damaging South African society.
The following are therefore not usually regarded as examples of voluntary conduct for the purposes of criminal law: As described in the English case of Bratty v A-G for Northern Ireland,[49] automatism is any act which is performed by the muscles without any control of the mind.
One day, while cutting meat with a sharp knife, he experienced an episode that the testifying expert described at trial as an "epileptic equivalent"--"an attack where the ordinary fit is replaced by a period of confusion."
"[61] Modelled on the German penal code, this provision created the special statutory offence of committing a prohibited act while in a state of criminal incapacity induced by the voluntary consumption of alcohol.
This, he argues, "may perhaps one day open the way for holding an individual police officer liable for a crime such as culpable homicide flowing from her negligent omission to protect a person from the real possibility of harm.
Where the State, represented by persons who perform its functions, acts in conflict with section 7, the norm of accountability must of necessity assume an important role in determining whether or not a legal duty ought to be recognised in any particular case.
In S v Bailey,[117] the Appellate Division found that a person is guilty of a crime in respect of which intention is a requirement where it is proved that The mere danger of losing one's job does not give one the right to act out of necessity, held the court in S v Canestra.
"As a general proposition," wrote Holmes JA, "a man who voluntarily and deliberately becomes a member of a criminal gang with knowledge of its disciplinary code of vengeance cannot rely on compulsion as a defence or fear as an extenuation.
This approach prevailed until relatively recent times, as is illustrated in the leading English criminal case of R v Dudley & Stephens,[133] which established a precedent, throughout the common-law world, that necessity is no defence to a charge of murder.
In an appeal against this sentence, the Appellate Division held that, weighing the influence of fear against the need for a deterrent to this kind of gangsterism, there was nothing so unreasonable in the trial judge's decision as to justify a finding that his discretion had not been judicially exercised.
The defence of necessity on a murder charge was upheld in S v Peterson,[135] since the State had not proved that a fictional reasonable person in the position of the accused would have offered resistance to the compulsion, including a threat against his life, which had been exerted by a co-accused.
The subsection goes on to say that "the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he believes, on reasonable grounds, These limits are in addition to those discussed above.
[175] It must be Relevant considerations in adjudicating on the chastisement of children were laid out in Du Preez v Conradie:[170] The test for determining criminal capacity is whether the accused had A defence in this area may relate to The common-law position is that a minor In R v K,[107] a charge of murder was brought against a child of thirteen.
The legislature addressed the issue with the Criminal Matters Amendment Act,[201] giving the court a discretion, if "it considers it to be necessary in the public interest," in cases involving serious crimes, to order either detention in an institution, or release, conditional or unconditional.
In S v Kalogoropoulos,[203] the court held that an accused person who relies on non-pathological causes in support of a defence of criminal incapacity is required in evidence to lay a factual foundation for it, sufficient at least to create a reasonable doubt on that point.
The issue on appeal was whether, on the facts, the trial judge, Friedman J, had been correct in law to hold that the accused, on a charge of attempted murder, could not be convicted of common assault where the necessary intention for the offence had been influenced by the voluntary consumption of liquor.
As to the fifth count (attempted murder), the court held that the State had not proven beyond a reasonable doubt that Laubscher had the necessary intention, in the form of dolus eventualis, to kill his child—especially in view of the fact that the whole object of his visit to the farm that evening had been to collect his child.
In a judgment "long and very thorough,"[235] Navsa JA comprehensively reviewed the jurisprudence on provocation and emotional stress, and the historical development of the defences of temporary non-pathological criminal incapacity and sane automatism.
[237]In the subsequent case of S v Marx,[238] the court held that the binding effect of Eadie was to conflate sane automatism and non-pathological incapacity,[239] "because a person who is deprived of self-control is both incapable of a voluntary act and at the same time lacks criminal capacity.
"In spite of an objective formulation of dolus eventualis in some earlier cases relating principally to the doctrine of common purpose,"[246] since the early 1950s the courts have favoured a subjective test for intention, which was ultimately adopted by the Appellate Division in R v Nsele.
Van Heerden JA gave the following hypothetical example to support his conclusion on the question of mistake regarding the causal sequence: Imagine that a robber plans to rob a café owner.
Perhaps the answer may lie in the fact that in common-purposes cases (such as Goosen) the courts have specifically followed an approach which imputes the act of the perpetrator to the other participants in the common purpose, irrespective of whether the latter have contributed causally to the unlawful consequence or not.
It is, however, unnecessary for present purposes to express any opinion on this view, save for mentioning that there may be some doubt as to whether the phrase "redelikerwyse kon en moes voorsien het," used in S v Van As, connotes anything more than the conventional objective standard, albeit somewhat individualised."
The criterion of the reasonable person was described by Holmes JA in S v Burger as follows: One does not expect of a diligens paterfamilias any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver.
Applying a standard of reasonableness that ignored the "race or the idiosyncracies [sic], or the superstitions, or the intelligence of the person accused," the Appellate Division held that, although his belief was unreasonable, it was based on a bona fide mistake of fact, so the killing fell within the Native Territories Penal Code definition of culpable homicide rather than murder.
The court traced the historical development of the doctrine, and found that "it would constitute a drastic departure from a firmly established practice to hold now that a party to a common purpose cannot be convicted of murder unless a causal connection is proved between his conduct and the death of the deceased.
Differences of opinion about the precise moment when a common purpose arises were resolved by the Appellate Division in its unanimous judgment in S v Motaung 1990 (4) SA 485 (A), delivered by Hoexter JA who concluded that the matter must be decided with reference to legal principle.
