Chapter 2 General Principles of Criminal Law in SA

Question 1

What are the requirements for criminal liability?

Answer 1

The state must prove, beyond a reasonable doubt, that the accused has committed;
1. Voluntary conduct which is unlawful (actus reus)
2. Conduct was accompanied by criminal capacity
3. Conduct was accompanied by fault (men’s rea).

Question 2

What does ‘voluntary’ conduct mean?

Answer 2

Controlled by the accused’s conscious will.

Question 3

What does unlawful conduct consist of?

Answer 3

1. Act
2. Omission
3. Causation
4. Unlawfulness

Question 4

What are the circumstances in which exceptional legal duties may arise?

Answer 4

1. Where there is prior conduct on the part of the accused creating a legal duty to act (omissso per commissionem rule)
2. Where the accused is in control of a potentially dangerous thing/animal, which imposes on them a legal duty to act to prevent that thing/animal causing harm to others
3. Where the accused is in a protective relationship with the person harmed so as to be under a legal duty to prevent that person from suffering harm
4. Where the accused occupies a public/quasi-public office face to face with the victim
5. Where either statute or contract requires a legal duty to act.

Question 5

What is causation?

Answer 5

In crimes that involve an unlawful consequence, there must be a causal link between the initial act or omission and the ultimate unlawful consequence.

Question 6

What are the requirements for causation for liability?

Answer 6

Factual and legal causation.

Question 7

What is the test for determining factual causation?

Answer 7

Sine qua non test.

Question 8

What is the theoretical distinction in terms of factual causation?

Answer 8

1. Causation by a positive act
2. Causation by an omission

Question 9

What does ‘unlawfulness’ ito criminal liability mean?

Answer 9

There must be no defence excluding unlawfulness available to the accused.

Question 10

What is private defence?

Answer 10

A kind of defence where it becomes necessary for a person faced with an imminent or commenced unlawful attack on their (or a 3rd party’s) legal interests to take the law into their own hands by using reasonable force to repel the unlawful attack.

Question 11

What is a ‘public authority’ defence?

Answer 11

The state is authorised by statute to use force, including deadly force, on a person who flees or resists arrest.

Question 12

What is a ‘necessity’ defence?

Answer 12

A defence where a person, faced with human threats (compulsion) overwhelming force of surrounding circumstances, contravenes the norms of the criminal law by inflicting harm on an innocent third party or the latter’s property.

Question 13

What is an ‘impossibility’ defence?

Answer 13

The physical impossibility for the accused to comply with a positive obligation imposed by law.

Question 13

What is a ‘superior order’ defence?

Answer 13

Defence arises in the context of military or police commands, it must be within the scope of commands issued by legally acknowledged military or police authorities.

Question 14

What is consent as a defence?

Answer 14

The principle of an injury is not done to one who consents underpins consent as a defence.

Question 15

What is ‘de minimis non curat lex’ as a defence?

Answer 15

The crime might be so insignificant in nature that the law might disregard it as too trivial to warrant criminal liability.

Question 16

What is ‘negotiorum gestio’ as a defence?

Answer 16

Where a person performs an otherwise unlawful act in the interest of another person with the intention of benefiting that other person, but without the latter’s knowledge or consent.

Question 17

What is criminal capacity?

Answer 17

The capacity to appreciate the wrongfulness of conduct (cognitive function of the mind).

Question 18

How is criminal capacity tested?

Answer 18

Subjectively.

Question 19

What affects capacity?

Answer 19

1. Youthfulness
2. Pathological incapacity
3. Intoxication
4. Provocation/emotional stress

Question 20

What is youthfulness ito criminal capacity?

Answer 20

1. There is an irrebuttable presumption that a child under 10 years of age is not criminally responsible for their actions.
2. There is a rebuttable presumption that children between the ages of 10-14 are not criminally responsible for their conduct but the effect of the presumption weakness as the child approaches the age of 14 years.

Question 21

What is pathological incapacity?

Answer 21

The accused under the Crim Proc Act has to prove on a balance of probabilities that they were suffering from a legally recognised pathological condition at the time they committed the prohibited conduct and that this condition impaired criminal capacity.

Question 22

What is the common-law exception to the rule placing the onus on the state to prove the elements of criminal liability beyond reasonable doubt?

Answer 22

The defence of insanity.

Question 23

What is the legal position regarding provocation or emotional stress?

Answer 23

1. The evidence of provocation is relevant not only to the existence of intention but also to a finding of criminal capacity.
2. Any factor could serve to impair criminal capacity.

Question 24

What is mens rea?

Answer 24

Fault (guilty mind).

Question 25

What is the overriding principle of SA criminal law?

Answer 25

An act is not unlawful unless there is a guilty mind.

Question 26

What forms can the fault element take?

Answer 26

1. Intention (dolus)
2. Negligence (culpa)

Question 27

What are the forms of intention?

Answer 27

1. Dolus directus
2. Dolus indirectus
3. Dolus eventualis
4. Dolus indeterminatus

Question 28

How is dolus assessed?

Answer 28

Subjectively.

Question 29

What is dolus directus?

Answer 29

The accused’s aim and object to perpetrate the unlawful conduct or cause the unlawful consequence.

Question 30

What is dolus indirectus?

Answer 30

Where the accused foresaw the unlawful conduct or consequence as certain or substantially certain to occur.

Question 31

What is dolus eventualis?

Answer 31

Where the accused foresaw the possibility that the prohibited consequence might occur, in substantially the same manner as that in which it actually does occur, or the accused foresaw the possibility that the prohibited circumstance might exist and they accepted this possibility into the bargain.

Question 32

What is the legal position regarding knowledge of unlawfulness?

Answer 32

If the accused genuinely does not know, or does not foresee, the possibility of the unlawfulness of their conduct, then they cannot be held to have the required guilty mind in the form of intention.

Question 33

What is conscious/advertent negligence?

Answer 33

A person may foresee the possibility but be found negligent if a reasonable person in their position would have taken steps to guard against this consequence and the accused did not take the required steps.

Question 34

What is a perpetrator/co-perpetrator?

Answer 34

Someone who satisfies the definitional elements of a particular crime.

Question 35

What is an accomplice?

Answer 35

Someone who knowingly associates themselves with the commission of the crime by the perpetrator and furthers the commission of the crime.

Question 36

What is the advantage of the doctrine of common purpose?

Answer 36

It relieves the prosecution of the burden of proving, on the part of remote parties in a common purpose, the essential element of causation in consequence crimes.

Question 37

What is an accessory after the fact?

Answer 37

A person who intentionally assists the perpetrator after the completion of the crime.

Question 38

What is the framework for criminal liability?

Answer 38

The prosecution (the state) must prove, beyond reasonable
doubt, that the accused has committed
○ Unlawful voluntary conduct (actus reus);
○ Criminal capacity; and
○ Fault (mens rea)

Question 39

What are the characteristics of unlawful conduct (actus reus)?

Answer 39

○ The accused must have been capable of making a decision
that controlled his conduct and must have been able to act
in accordance with that decision

○ The conduct is either an action (positive act), or a failure to
act (omission), by the accused

○ The act or omission must have caused particular
consequence (causation)

Question 40

What are the factors affecting unlawful conduct?

Answer 40

○ Involuntary conduct
○ Private defence
○ Public authority
○ Necessity and impossibility
○ Obedience to superior orders
○ Consent

Question 41

What is criminal capacity?

Answer 41

Capacity to appreciate the wrongfulness of conduct and act in accordance with that appreciation.

Question 42

What are the factors affecting capacity?

Answer 42

1. Youth
2. Pathological incapacity
3. Non-pathological incapacity
4. Intoxication

Question 43

What are the factors affecting fault?

Answer 43

○ Mistake
○ Aberratio ictus (going astray/missing of the blow)
○ Youth
○ Pathological grounds
○ Non-pathological grounds
○ Putative justification

Question 44

What is putative justification?

Answer 44

Exists where an accused is under the mistaken belief that they are conducting themselves in private defence where there is no such ground of justification in the circumstances.

Question 45

What are the caveats to participation in crime?

Answer 45

1. Common purpose
2. Accomplices
3. Accessories after the fact

Question 46

What are examples of inchoate crimes?

Answer 46

1. Attempts
2. Incitement
3. Conspiracy