Capacity

Question 1

What is the definition of capacity?

Answer 1

persons are responsible for criminal conduct only if the prosecution proves brd, that at the time the conduct was perpetrated, they possessed criminal capacity

Question 2

What is non-pathological incapacity?

Answer 2

x’s alleged criminal incapacity was of a relatively brief duration and not a manifestation of a pathological mental disturbance

Question 3

what are the mental abililtites a person must have in order to have capacity?

Answer 3

1. Mental ability to appreciate the wrongfulness of the conduct
2. Ability to conduct self in accordance with such appreciation of wrongfulness

Question 4

What is pathological incapacity?

Answer 4

• If mental illness present: pathological
  incapacity
• alternative defence:insane or sick automatism
• Authority: sec 77,78 & 79 CPA
• if invoked: the defence is pathological
  criminal incapacity: mental illness is the
  trigger

Question 5

what is non-pathological incapacity?

Answer 5

Youthfulness, intoxication and provocatin are the trigger for NPCI

Question 6

What did the Laubscher case state regarding NPCI?

Answer 6

-First case where NPCI was used as a defence
-Court seperated capcity from NPCI
-Laubscher killed MIL + attempted to kill ex wife, her father and baby out of rage (provocation) he was denied to see the child

Question 7

What was the Eadie decision regarding NPCI?

Answer 7

-X assaulted and killed Y with a hockey stick in an incident of road rage
- court rejected his defence of non-pathological criminal incapacity and
confirmed his conviction of murder
- There is no difference between NPC+ emotional stress+ sane automatism
=if you raise NPCI you claim you have acted involuntarily - Such a plea of involuntary conduct is sane automatism (which is not easily upheld)
=SCA ‘overturned’ the defence of NPCI

Question 8

What are the different thresholds for the criminal capacity of children?

Child Justice Amendment Act sec 7-12

Answer 8

**A.CHILDREN AGED 0-12
- There exists a criminal irrebuttable presumption that children below age 12
cannot be held liable for any unlawful acts

B.CHILDREN AGED 12-14
-Children age 12-14 have limited criminal capacity-this is a reuttable presumption

**C.CHILDREN AGED 14 AND ABOVE
**
-Presumed to have criminal capacity

Question 9

How is the criminal capacity of a child aged 12-14 proved according to section 11?

Child Justice Act

Answer 9

, the state must prove beyond a reasonable doubt that at the time of the comission of the crime the child had capacity to
1.appreciate the difference between right+wrong
2. act in accordance with that appreciation

Question 10

What is the responsibility of a police official where the age of child is uncertain?

Answer 10

According to section 12 of the Child Justice Act, a police official who is unsure of the age of a child must treat the person as a child

Question 11

Mental Illnes

What is a mental illness?

Answer 11

A POSITIVE DIAGNOSIS OF A MENTAL HEALTH RELATED ILLNESS IN TERMS OF ACCEPTED DIAGNOSTIC CRITERIA MADE BY A MENTAL HEALTH CARE PRACTITIONER AUTHORISED TO MAKE SUCH A DIAGNOSIS

Question 12

Statutory Basis for Mentall Illnes Criminal Incapacity

What does section 77 of the CPA provide for with regards to mental illness?

Answer 12

• Deals with accused’s trial-ability
• accused is incapacitated due to mental illness at the time of the trial - And cannot stand his trial
• Invoke sec77(1)
• Court orders psychiatric observation ito sec79

Question 13

Statutory Basis for Mental Illness Criminal Capacity

what does section 78 of the CPA provide with regards to mental illness?

Answer 13

-Statutory embodiment of criminal incapacity
- accused was incapacitated due to mental illness during the commission of the crime - Invoke sec78(1) CPA
- Court orders psychiatric observation ito sec79

Question 14

Statutory Basis for Mental Illness Criminal Capacity

What is the effect of section 77 on the trial?

Answer 14

• If the assessment reveals that X is triable the proceedings continue as normal in terms of section 77(5)
• sec77(5): If the court finds that the accused is capable of understanding the proceedings so as to make a proper defence, the proceedings shall be continued in the ordinary way.
• BUT if the assessment reveals that X is by reason of mental illness or defect not capable, X is sent to a psychiatric facility in terms of sec77

Question 15

What is the effect of section 78 on the trial?

Answer 15

Sec78 deals with the defence of pathological criminal incapacity.
- Where by reason of mental illness or defect at commission either lacked capacity
- If it is alleged that X as a result of mental illness was not criminally liable, they will be sent for assessment in terms of sec79
- - If X is found not guilty by reason of mental illness or defect, he/she will be acquitted but committed to a psychiatric facility.

Question 16

What did the court in the Kavin case uphold regarding capacity?

Answer 16

Kavita suffered from depression and became delusional often-severe that he wanted to kill his familt+himself
-shot his wife+children+he never killed himself
-Raised sec 78 in court
-self to psychiatric hospital for evaluation
-Couldn’t distinguish between right+wrong-acquitted of murder and sent to psychiatric facility ito sec 78

Question 17

What did the court in the Pieterse case state regarding capacity?

Answer 17

He was a psychopath who raped+murdered a 9 year old girl
-went home covered in blood+said he was in a bar fight
-sent for evaluation to sec 78
-Psychopath not a mental illness+is only a mitigating factor if there was a link between psycopathy+nature of the death
-Psychopath may be guilty but with diminished responsibility to sec 78