Fault

Question 1

Provide a brief description of the fault requirement

Answer 1

Fault may take two forms: intention (dolus) or negligence (culpa). All common-law crimes require intention, apart from culpable homicide and contempt of court committed by an editor of a newspaper. Statutory crimes require either intention or negligence. Fault must exist in respect of each and every element of the crime. An act is not unlawful unless there is a guilty mind.

Question 2

What is the latin term for intention and how is it assessed?

Answer 2

Dolus; subjectively

Question 3

Define intention

Answer 3

An accused is at fault where he or she intentionally commits unlawful conduct knowing it to be unlawful.

Question 4

What are the different forms of intention?

Answer 4

Dolus directus/indirectus/eventualis/indeterminatus

Question 5

Define dolus directus

Answer 5

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

Question 6

Define dolus indirectus

Answer 6

Even though the unlawful conduct/consequence was not the accused’s aim or object, they foresaw the unlawful conduct or consequence as certain or substantially certain to occur.

Question 7

Define dolus indeterminatus

Answer 7

The accused has no particular object or person in mind, but throws a bomb onto a train.

Question 8

Define dolus eventulis

Answer 8

Even though the accused did not mean to bring about the unlawful consequence, they ought to have reasonably foreseen that the unlawful conduct would have resulted in the unlawful consequence that actually did occur, and they reconcile themselves with this fact. Given that it is difficult to prove direct or indirect intent, dolus eventualis is usually the primary focus of the prosecution.

Question 9

What are the requirements for dolus eventualis?

Answer 9

a) foresight
b) possibility
c) a correlation between foreseen and actual manner of consequence occurring
d) recklessness

Question 10

Elaborate more on a) foresight

Answer 10

The circumstances or consequence must have been anticipated by the actor. This does not require a reasonable person assessment. The subjective test may be satisfied by inferential reasoning i.e. the accused 1) ought to have foreseen the consequences and thus 2) must have foreseen them and therefore 3) did foresee them. This inference must not be made lightly, and it must be the only one that can reasonably be drawn from the proved facts.

Question 11

Elaborate more on b) possibility

Answer 11

The possibility must be real, as opposed to remote or unlikely [Makgatho].

Question 12

Elaborate more on c) the correlation between the foreseen and actual manner of consequence

Answer 12

The intention element is not satisfied if the consequence occurs in a way that differs markedly from the way in which the accused foresaw the causal sequence. For example, if X uses a loaded gun to rob a bank, and he reasonably foresees that he may have to fire the gun and cause harm, even death, to the bank teller, then he has the requisite intention. However, what if the bank teller dies of a heart attack upon being confronted with a loaded gun? Does X still hold the requisite intention for murder?

Question 13

Provide a case summary of S v Goosen

Answer 13

The appellant had participated in a robbery. He had foreseen the possibility that one of his fellow robbers might intentionally shoot the deceased. They had attempted to rob the deceased, but his car rolled forward and one of the robbers unintentionally shot the deceased. The appellant was only assisting the gang, but he pleased guilty and was charged with murder.

Did the appellant have the requisite intention for the crime of murder?

The appellant was found guilty of culpable homicide. He lacked the requisite intent in the form of dolus eventualis because he was of low intelligence and it had not been proven that he had foreseen this sequence of events.

Question 14

Elaborate on d) recklessness

Answer 14

The disregard for the possibility of harm must have been reckless. Recklessness is persistence in such conduct, despite such foresight or the conscious taking of the risk of resultant, not caring whether it ensues or not. The accused must have accepted the possible consequence into the bargain.

Question 15

Provide a case summary of DPP v Pistorius

Answer 15

Oscar Pistorius shot and killed his girlfriend. He was found not guilty of murder, but guilty of culpable homicide and contravention of the Firearms Control Act. He was sentenced to 5 years’ imprisonment.

Was the accused only guilty of culpable homicide, and could the sentence be increased?

Found guilty of murder with dolus eventualis as the fault requirement. Court a quo sentenced Pistorius to six years’ imprisonment. The minimum sentence is 15 years, unless there are compelling circumstances that suggest otherwise. There were mitigating and aggravating factors, but on the whole the crime was serious enough to warrant the minimum sentence. Given that +/- two years had already been served, this Court imposed a 13 year sentence.

Question 16

Elaborate on the requirement of consciousness of wrongfulness

Answer 16

If the accused genuinely does not know that their conduct might be unlawful, then they cannot be held to have had the required guilty mind in the form of intention. It is not necessary to prove that the accused knew the detailed requirements of the offence charged/exact section or wording of the law in question. Rather, the accused my have merely known or at least foresaw the possibility that what they were doing was contrary to law in the broad sense.

Question 17

Provide a case summary of S v de Blom

Answer 17

Mrs De Blom had been convicted on two counts of taking money and jewellery out of the Republic illegally. Her defence was that she did not know that she required permission to do such.

Did the regulations require mens rea for liability either in the form of intention or negligence?

It cannot be presumed that every person knows the law. The state has failed to prove dolus or even culpa. Concerning the money, she was well educated and ought to have known that she could not have taken such a large amount out of the country without permission. She is liable for this charge. However, concerning the jewellery, she always wore lots of jewellery and returned with it to the country. Therefore, she is not liable for that charge. Knowledge of the unlawfulness of the accused’s conduct, on the part of the accused, is always a requirement of mens rea in the form of intention.

Question 18

What is the ignorantia juris rule and is it a part of SA law?

Answer 18

The welfare of society and the State demand that the state and not the individual should determine the ambit of criminal conduct, and that if ignorance or mistake of the law were allowed as an excuse people might refrain from deliberately acquiring knowledge of their legal duties. This rule has been removed from SA law [De Blom].

Question 19

What is the difference between intention and motive?

Answer 19

Motive is a person’s reason for conduct. A motive for killing may be revenge, or a motive for theft may be the need to feed starving children. Motive is considered irrelevant to criminal intent. However, it may be considered in the determination of intent, unlawfulness and knowledge of unlawfulness, but intention may nevertheless be proved without reference to motive.

Question 20

When will courts assume that intention was required by statute?

Answer 20

There are some crimes for which there is strict liability. However, SA law prefers that fault should be an element of liability in statutory offences. There is a presumption that legislators intended this, due to their use of words such as maliciously, knowingly, corruptly and fraudulently. Dolus eventualis may not be enough. Rather, dolus directus may be required for statutory liability.

Question 21

What are some defences to a presumption of intention?

Answer 21

1) intoxication
2) lack of intention
3) mistake
4) pathological incapacity
5) provocation and emotional stress
6) putative defence
7) youth

Question 22

Elaborate more on 3) mistake

Answer 22

Ignorance implies a total want of knowledge, but mistake implies a wrong conclusion drawn from knowledge already held. The mistake must be essential and genuine - essential in that it relates to a material element of the crime in question, and genuine in that the mistake must not be feigned.

Question 23

Is error in objecto a recognised defence in SA law?

Answer 23

Where A shoots C, thinking that A was shooting B. There is an error as to the object. This is irrelevant, and is not a ground for mistake. A will be guilty of C’s murder.

Question 24

Is aberratio ictus recognised in SA law?

Answer 24

Where A intends to shoot B, but the bullet goes astray and kills C. A will be held liable for murdering C. Rejected in SA law. Only culpable homicide.

Question 25

Elaborate more on 6) putative defence

Answer 25

Where the accused genuinely believes that:

1) a defence excluding unlawfulness exists, whereas it does not, or
2) that they are acting within the bounds of a legitimate defence, whereas they are exceeding those bounds,

then they lack fault in the form of intention. Examples include private defence, necessity, obedience to superior orders, public authority and consent.

Question 26

Define negligence

Answer 26

Conduct must fall short of that of a reasonable person. This deviation does not have to be gross. The accused must have failed to reasonably foresee the possibility of e.g. death and not taken steps to guard against this consequence. This is called conscious or advertent negligence.

Question 27

What is the test for negligence?

Answer 27

a) would a reasonable person, in the same circumstances as the accused, have foreseen the reasonable possibility of the occurrence of the consequence or the existence of the circumstance in question, including its unlawfulness?
b) would a reasonable person have taken steps to guard against that possibility?
c) did the accused fail to take the steps which he or she should reasonably have taken to guard against it??

Question 28

Can the threshold of negligence be adjusted?

Answer 28

The objective standard can be adjusted upwards to account for skills particular to a profession. However, it cannot be lowered. The degree of negligence only plays a role when determining sentencing.

Question 29

When will a court deem that a statute requires negligence?

Answer 29

Negligence may constitute the fault element of a crime, even if culpa is not the gist of the offence. Hence, the words ‘negligently’ or ‘without due care’ do not need to appear in the statute. Whether negligence is present will depend on the foresight or care that a statue demanded in the circumstances. To determine whether the legislature contemplated negligence as the fault element of an offence, the courts have invoked five considerations:

a) language
b) scope and object
c) implementation
d) penalty
e) reasonableness

Question 30

What is a defence to negligence?

Answer 30

Mistake. If the accused genuinely and reasonably did not know that what they were doing was unlawful, then they must be acquitted.

Question 31

Provide a case summary of R v Mbombela

Answer 31

The accused had killed a 9-year-old child that he believed to be the tikoloshe. It was in fact his nephew.

Was his belief reasonable, and was it a mistake?

To be a mistake, the belief must be held bona fide, and it must also be reasonable. The reasonable man test cannot change based on the circumstances. If unreasonable, as it was in this case, a bona fide mistake will classify the killing as culpable homicide. The court overturned the charge of murder and the death sentence, and found the accused guilty of culpable homicide and sentenced him to twelve months’ imprisonment with hard labour.

Question 32

What is the Latin term for negligence and how is it assessed?

Answer 32

Culpa; objectively

Question 33

What is the general rule concerning fault?

Answer 33

No liability without fault is a general rule in South Africa. There are two exceptions to this rule, neither of which enjoy any real following:

1) versari in re illicita - a person should be held liable for the unintended consequences of an illegal activity. This was rejected in [Van der Mescht].
2) strict liability in statutory offences - because of the standard expected in society, it was reasoned that violating standards should be subject to a penalty which takes no account of fault. In terms of criminal law, such liability is unacceptable [Coetzee].

Question 34

What is the contemporaneity rule?

Answer 34

The unlawful conduct and the fault must exist at the same time. Does not apply when death is not caused by the initial act i.e. strangling or shooting.