Fault

Question 1

What is fault?

Answer 1

the grounds upon which X may be blamed for his or her unlawful act > two forms of culpability: intention and negligence
- X cannot be held liable for act if no fault present at time of commission of act
- Therefore: As a general rule fault is a prerequisite to incur criminal liability and one of the elements the prosecution has to prove

Question 2

What is the first exception to fault?

Answer 2

1. Strict liability:
   - Liability in terms of which fault is dispensed with
   - Only applies to statutory offences
   - Applies if expressly stated

Question 3

Strict Liability

What are the facts of the De Blom case for strict liabilyt as an exception to fault?

Answer 3

• Mr and Mrs De Blom were on their way to Argentina - Arrived at airport with all luggage and air tickets - apartheid; men and women were still divided and had to go into different locations to be searched
• Mrs De Blom’s luggage was searched and they found $40 000 notes and jewellery
• In terms of the Exchange Control Regulations: a person had to have permission if they wanted to take a certain amount of money out of the country > permission had not been obtained from the Reserve Bank
• The notes were also hidden in the bag
• She was charged with contravening the Act - her defence: she did not know she needed permission

Question 4

Strict Liability

What did the Court in the De Blom case state regarding strict liability as an exception to fault?

Answer 4

The court had to determine whether culpability was required as it was left out of the provisions of the Act.
- The court held that unless the contrary prevails, there is a general rule that the
legislature did not intend to punish innocent illegal acts.
- There is a presumption against strict liability.
- The court then had to determine whether she did in fact not know about the provision.
- In terms of the dollar bills, the court held that she did indeed know that she needed
permission (she was a frequent traveller) and her defence here was rejected.

• The court also held that in terms of this provision, culpability is required for the offence to be committed.
• ## With regards to the jewellery however, the court held that there was reasonable doubt as to her knowledge of the Act and accordingly held that her version may be reasonably possibly true.
• She was charged with regards to the dollar bills but not with regards to the jewellery.

Question 5

What is the 2nd exception to fault?

Answer 5

Vicarious liability-One person incurs liability for the conduct of another

Question 6

Vicarious Liability

What did the Nanabhai case provide for regarding vicarious liability?

Answer 6

-No person incurs vicarious liability unless the contrary is proved

Question 7

What is the Taint Doctrine?

VERSARI IN RE ILLICITA

Answer 7

• If a person engages in an unlawful act or immoral activity, he is criminally liable for ALL the consequences flowing from such activity, regardless of whether he acted intentionally or negligently.
• The unlawful nature of the activity colours or “taints” the consequences

Question 8

Vicarious Liability

What did the Bernadus case state regarding the taint doctrine?

Answer 8

• The accused and deceased involved in altercation - Accused and another person were fighting when deceased intervened
• Accused (B) told deceased (Z) to stay out of it - B threw a walking stick - Z was hit in the skull which was penetrated and this eventually caused his death
• He was found guilty of culpable homicide
• Court held:
• Reasonable person in his position would have foreseen throwing this instrument could be potentially lethal
• However, B was not guilty regarding Z’s death because he had no fault > neither
  intention nor negligence to kill the deceased - B could not have foreseen the intervention by the deceased
• B was still convicted of culpable homicide

Question 9

What are the 2 forms of fault?

Answer 9

1.Intention
2.Negligence

Question 10

Intention

What is cognitive and conative intention?

Answer 10

Cognitive-knowledge of the act,circumstances actmentioned in definitional elements

Conative-directing the will towards a
certain act or result

THUS: to know and to will an unlawful act or result

Question 11

Intention

What is dolus directus and dolus indirectus with regards to intention?

Answer 11

• Dolus directus: a person directs his will
  towards achieving the prohibited result-X shoots Y-easier form of intention.
• Dolus indirectus: the prohibited act or result is not X’s main aim, but he realise in order to achieve his main goal, the prohibited act or result will necessarily follow

Question 12

Intention

What is dolus eventualis?

Answer 12

A person acts with dolus eventualis if the
prohibited act or result is not his main aim, but:
➢ He/she subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused, and
➢ He reconciles himself to this possibility

• He reconciles himself to his possibility.
• The prohibited result is the possibility
• Which X forsees this possibility
• The possibility must be reasonable and substantial

Question 13

Intention

What is the test for intention according to the S v Van As case?

Answer 13

– FACTS: the version that the deceased grabbed the accused’s pistol and shot himself – expert evidence
-indicating that the accused probably held the pistol against the deceased’s head and that it fired as a result of the deceased attempting to grab the pistol or knock it
away

TEST
1.Court distinguish expert evidence of opinion based on recognised writers or expert himself conducts experiments and places evidence there before the court
2.Always easier for courts to understand and accept evidence when it is the latter
3.Expert evidence: the role thereof and the requirements set by the court

Question 14

Intention

What are the facts of the S v Sigwahla case for the test of intention?

Answer 14

Mr S robbed certain person of his bicycle and R1000 ,he had a long knife with him
- Group of people walking together after lunch - Appellant robbed the person (who was also with them) - Then the deceased walked past - As deceased walked past; stabbed deceased in left of his chest
- As a result > he died
- He was charged with murder
- Had the prosecution proved S have intention to murder deceased?
- Deceased posed no threat
- Deceased merely passed by

Question 15

Intention

What is the test for intention as held in the S v Sigwahla case?

Answer 15

1. The expression of intention to kill does not in law require accused to apply his will to accomplish the death of deceased, it is sufficient if accused subjectively saw the
   possibility of his act causing death and was reckless of such result
2. Distinction must be observed between what X did subjectively foresee and what would have gone on in the mind of a bonus paterfamilias (reasonable person) in the position of accused
3. Decision between subjective foresight and objective foreseeability must NOT become blurred

Question 16

Negligence

What is negligence?

Answer 16

a persons conduct is negligent if reasonable person in same circumstances would have foreseen possibility that certain circumstance might exist or conduct may bring about result, and would have taken steps to guard against such possibility, and the conduct of the person to be assessed differs from that of a reasonable person in similar circumstances

Question 17

Negligence

What is the definition of negligence according to the Naidoo case?

Answer 17

The unlawful negligent killing of more than one human being gives rise to more than one punishable act irrespective of whether the negligent act which caused death was a series of different acts or the same single act.

Question 18

Negligence

What is the test for negligence?

Answer 18

There must have been reasonable forseeability and preventability of the act

Question 19

Negligence

What is Luxuria?

Answer 19

Luxuria (conscious negligence): the wrongdoer subjectively foresees the possibility of harm in circumstances where such harm is also reasonably foreseeable but he does not reconcile himself to the possibility of this actually happening

Question 20

Dolus Eventualis v Luxuria

What did the Humphreys v the State case state regarding dolus eventualis and luxuria?

Answer 20

A.a collision between a minibus and a train, the (SCA) today set aside multiple convictions of murder and attempted murder secured against the minibus driver, replacing the murder convictions with convictions of culpable homicide, and reducing the sentence

B.- The appeal against the convictions succeeded in the SCA on the grounds that the state had failed to prove the element of murder described as dolus or intent.
- The SCA found that, although the appellant’s conduct was voluntarily, it could
not be said that he had reconciled himself with the consequences of his conductwhich he subjectively foresaw.
- As such dolus eventualis was not justified

C. Therefore: the conduct was voluntarily BUT he had reconciled himself with the
consequence of his conduct which he did indeed foresee > therefore; conscious of
negligence > luxuria present

Question 21

Excuses

What is an excuse in regards to intention?

Answer 21

• a ground that possibly excludes intention
• Based on 2 Requirements:
  1. Genuine Mistake (subjectively determined)
  2. Material Mistake
• Only a MATERIAL error will exclude fault
• When will an error (defence) be substantial or material?
• when it relates to one of elements of crime.

Question 22

Excuses

What is the difference between a mistake of fact and a mistake of law?

Answer 22

- Mistake of fact: something in the definitional elements of the crime > other than unlawfulness
- Mistake of law: this pertains to something in the second element of the crime > that is unlawfulness

• eg: if X shoots at a bird but he in facts shoots at Y > then he is mistaken as to the object of his act (a mistake of fact)
• However > where X is mistaken as to the lawfulness of his act > he does not know it is wrong to shoot Y > then it is a mistake of law

Question 23

Mistake of Fact

what is error in persona?

Answer 23

exists where X is mistaken as to the identity of the Victim
- Effect: Error in persona is an immaterial error and is therefore, not, a defence at all

Question 24

Mistake of Fact

What did the Swanepoel case state regarding an error in persona?

Answer 24

-Use of force in affecting an arrest but there was an error in persona
– Definition of error in persona highlighted and the fact the identity of the victim is an
immaterial factual error
- *therefore > ONLY a material factual error, excludes intention

Question 25

Mistake of fact

What did the Mbombela case state regarding a cultural defence?

Answer 25

• Accused 18-20
• The courts regarded the accused as having limited intelligence (rural village)
• The accused believed in the existence of evil spirits
• On the day in question > children were playing outside a hut they believed to be empty, and reported that there was a Tokoloshe to the accused
• He struck the tokoloshe several times with the hatchet. On investigation, however, the object turned out to
  be his nine-year-old nephew. He was convicted of murder, sentenced to death, and appealed.”
• Used a cultural defense
• He did not intend to kill a human being
• He genuinely believed it was the Tokelosh
• Court held: Genuine belief accepted and overturned conviction

=the cultural defence would then exclude
intention)

Question 26

What is the abberatio ictus?

Answer 26

X wishes to achieve a particular result but due to their own clumsiness someone else is struck
Example-X wants to shoot Y, but bullet hits tree and strikes Z

* CONCRETE APPROACH PREFERABLE
– X will always be guilty of attempted murder in respect of Y
– If X foresaw and reconciled-murder (dolus eventualis)
– If X foresaw but rejected-luxuria-culpable homicide
– If X failed to forsee in circumstances where reasonable person would
have and would have prevented-culpa-culpable homicide
– Neither intention nor negligence-not guilty

Question 27

What is mistake as to the causal chain?

Answer 27

• Where the result or consequence ensues in a different manner than that envisioned by X
• Only applicable to materially defined crimes

Question 28

What did the Masilela case state regarding mistake as to the causal chain?

Answer 28

Facts:
- Accused and his co-accused set fire to a farmer’s house (deceased) strangled him >
thinking he was dead
- It transpired he died as a result of carbon monoxide poisoning and not strangulation
- Court found: him guilty of murder
- Mistake as to causal chain was no defence
- it constituted one single cause of conduct (a continuous chain of events)
- Defence as to mistake of casual chain of events failed

Question 29

What did the Goosen case state regarding mistake as to the causal chain of events?

Answer 29

FACTS
- In this case: the fact he pulled the trigger in an involuntary movement and killed
deceased > was held to be a substantial deviation in causal chain of events
- although he could foresee the possibility that in the course of a robbery someone may get killed > he did not foresee the possibility of involuntarily pulling the trigger
- held to be a substantial deviation

COURT HELD:
-if there was a substantial or material deviation in the chain of events it will be a defence-it could be argued as a general rule that this mistake will not be material
- The only case where this succeeded as a defence
- it will constitute a defence if a substantial deviation from what X envisioned