Chapter 3 - The act Flashcards
Elaborate further on the words “conduct’”, “act” and “omission”
From a strictly technical point of view, the term “act” does not include an “omission”. Rather, an act is the exact opposite of an omission. No general concept embraces both these terms. The two concepts differ from each other, like night and day, because to do something and not to do something are the exact opposites. However, we may use the word “conduct to refer to both of them.
Are thoughts punishable?
Merely thinking of doing something, or even a decision to do so, is not punishable. Before there can be any question of criminal liability, Thabo must have started converting his thoughts into actions.
Who or what must commit the act?
The act must be a human act, in other words, the perpetrator of the act must be a human being. However, a human being can also be punished for commissioning a crime through the agency of an animal.
How must the act be committed?
An act or an omission is punishable only if it is voluntary.
How do you determine if the conduct is voluntary or not?
The conduct is voluntary if Thabo is capable of subjecting his bodily movements to his will or intellect.
What are the factors that exclude the voluntariness of the act?
- Absolute force
- Natural forces
- Automatism
Explain absolute force and give an example.
The voluntary nature of an act may first be excluded by absolute force. The following is an example of absolute force:
Thabo is slicing an orange with a pocketknife. Vusi , who is much bigger and stronger than Thabo, grabs Thabo’s hand that is holding the knife and presses it, with the blade pointing downward into Mandla’s chest. Mandla dies of the knife-wound. Thabo, with his weaker physique, would have been unable to defend himself, even if he had tried. Thabo performed no act. It was Vusi who performed the act.
Explain natural forces and give an example
The voluntary nature of an act may, in the second place, be excluded if a person is propelled by natural forces, thereby causing others damage. When a hurricane blows Thabo through Lerato’s shop window, Thabo has committed no act for which he may be punished.
Explain automatism and give an example
The third, and in practice, the most important, instance in which the law does not regard the conduct as voluntary is when a person behaves in a mechanical fashion, such as in the following instances: reflex movements such as heart palpitations or a sneezing fit; somnambulism; muscular movements such as the arm movement of a person who is asleep, unconscious, hynotised, or having a nightmare; an epileptic fit; or so called blackout. These types of behaviors are often referred to as automatism.
Differentiate between sane and insane automatism
Sane automatism refers to cases in which Thabo relies on the defense that there was no voluntary act on his part because he momentarily acted like an automaton.
Insane automatism refers to cases in which Thabo relies on the defense of mental illness.
Why is the difference between sane and insane automatism important?
The first difference relates to the onus of proof. If Thabo relies of the defense of sane automatism, the onus of proving that the act was performed voluntarily rests on the state. If, on the other hand, Thabo raises the defense of insane automatism , the onus of proving his mental illness rests upon Thabo, and not the state.
The second difference relates to the eventual outcome of the case, namely whether Thabo will leave the court as a free person. A successful defense of sane automatism results in Thabo leaving the court a free person, as he is deemed not to have acted. A successful defense of insane automatism, on the other hand, results in the court dealing with Thabo in accordance with the relevant provisions of the Criminal Procedure Act that address the order that a court can issue after finding that Thabo was mentally ill at the time of the commission of the crime. Thabo will likely be detained in a psychiatric hospital for a certain period, which results in Thabo losing his freedom.
When is omission punishable?
A omission is punishable only if there is a legal duty upon Thabo to act positively. A moral duty is not the same as a legal duty.
When is there a legal duty to act positively?
The general rule is that there is a legal duty upon Thabo to act positively if the legal convictions of the community require him to do so.
Name 3 specific instances when it comes to legal duty
- Statute imposition
- Provisions of the common law
- Agreement
Elaborate on the statute-imposed legal duty and give examples.
A statute may impose a duty on somebody to act positively, for example, to complete an annual income-tax return, or not to leave the scene of a car accident, but to render assistance to the injured and to report the accident to the police.
