Self Assessment Questions & Answers Flashcards
QUESTION 1
In June 2023, Thabo is charged with drunken driving, a crime which he had allegedly committed in September 2020. Assume that, at that time (in 2020), legislation provided that a first offender could not be sent to prison for a conviction for drunken driving. However, in February 2023 the legislature amended the legislation, giving the courts discretion to send a first offender convicted of drunken driving to prison for a period not exceeding six months.
Thabo, a first offender, is convicted of the crime of drunken driving. The court, relying on the new legislation, sentences him to a period of three months’ imprisonment. Discuss whether the punishment imposed by the court may be challenged on the ground that it violates the principle of legality.
My Answer
According to the principle of legality, the nulla poena sine lege rule states that after an accused has been found guilt, the four rules of legality must also apply in terms o the punishment, meaning the sentence must already be determined in reasonably clear terms by the law at he time of of the commission (2020), that a court must must interpret the words defining the punishment narrowly rather than broadly, and that a court is not free to impose any sentence other than the one legally authorised.
Study Guide Answer
The punishment of imprisonment imposed on Thabo may be challenged on the grounds that it violates the ius praevium rule. In the context of punishment, this principle means that a more severe punishment may not be imposed on a person than the punishment that could be imposed at the time of the commission of the offence. See SG 2.8 and the discussion of section 35(3)(n) of the South African Constitution.
QUESTION 2
Thabo ’s hobby is to fly a micro light plane. One day, while flying over a beach, the engine of his plane suddenly stalls. Thabo is unable to control the plane and it crashes on the beach. The boat of Kelvin, a fisherman, is damaged by the impact. Thabo is charged with malicious injury to the property of Kelvin. Discuss which defence Kelvin could invoke.
My Answer
Thabo acted out of necessity because, due to the failure of the engine of his micro air light plane, which warranted an emergency and posed an immediate threat to his life, he had to bring his plane down on the beach. Therefore, should Thabo’s defense be successful, he will be found not guilty of injury to the property.
Study Guide Answer
Thabo may rely on the defence that he did not perform a voluntary act. In fact, the voluntariness of his act was excluded by natural forces, namely, the gravity of the earth, which pulled the plane down onto the beach and into Kelvin’s boat. See SG 3.3.4.2b. Some of you probably answered this question by saying that Thabo lacked the intention to damage Y’s boat. Remember that the question whether or not a person acted with intention comes into play only after it has been established that he/she performed a voluntary act which complied with the definitional elements of a crime and was unlawful.
QUESTION 3
Thabo shoots Moeketsi twice in the chest and the abdomen with the intention to kill him. Moeketsi is admitted to a state hospital, where he receives inadequate and negligent care. He dies two weeks later as a result of septicaemia, caused by the gunshot wounds. X is charged with murder. X’s lawyer argues that the negligence and inadequate care in the hospital constituted a novus actus interveniens, which broke the chain of causation between X’s original act and the ultimate result.
You are the state prosecutor. Discuss the arguments that you would present to prove that X’s act was the cause of Y’s death.
My Answer
Thabo, when he shot Moeketsi, had criminal liability and the intention to commit an unlawful act. His act has a direct causal link to Moeketsi’s death because, without it, Moeketsi would not have suffered gunshot wounds that landed him in the hospital and later proved fatal due to septicemia that emanated from the wounds. Therefore, Thabo is guilty of Moeketsi’s death.
Study Guide Answer
The state will have to prove that Thabo’s act was the factual, as well as the legal, cause of Y’s death. Factual causation is easy to prove — had Thabo not shot Moeketsi in the chest and stomach, he would not have been admitted to hospital and would not have contracted septicaemia. Therefore, Thabo’s act is a conditio sine qua non of Moeketsi’s death. Thabo’s act can also be viewed as the legal cause of Moeketsi’s death based on policy considerations. The relevant authority is S v Tembani 2007 (1) SACR 355 (SCA). In this case, the Supreme Court of Appeal held that the deliberate infliction of an intrinsically dangerous wound from which the victim is likely to die without medical intervention must generally lead to liability for an ensuing death, even if the medical treatment given later is substandard or negligent. However, the negligent medical treatment may be viewed as a novus actus interveniens if, at the time of the treatment, the victim had recovered to such an extent that the original injury no longer posed a danger to his life. In terms of the stated facts, this is not the position. Therefore, X’s act can be viewed as the factual, as well as the legal, cause of Y’s death. See SG 4.3.7.3; Reader p. 43.
QUESTION 4
Mmapule, a 60-year-old woman, lives on her own in a flat. One evening, while lying in bed, she hears a noise in the passage. She switches on the light, only to discover a young man, aged about 17, standing at her bed. The man has a knife in his hand. He pushes her onto the bed, telling her that he is going to rape her and that, as long as she keeps quiet, he will not kill her. Mmapule has a gun, which she keeps under her bed. Before Jabu can rape her, she manages to get hold of the gun. She shoots Jabu in the forehead. Jabu dies instantly as a result of the gunshot wound.
Mmapule is charged with murder. You are her legal representative. Discuss which defence you will invoke and on which authority you will rely.
My Answer
The attack by Jabu was, unlawful, against interests that ought to be protected, and it was threatening but not yet completed. Mmapule’s defensive action was directed against her attacker, it was necessary, was in a reasonable relationship to the attack; and she was aware that she was acting in private defence. Therefore, Mmapule acted in private defense to prevent attempted rape, as in the case of Mokoena (1976 (4) SA 162 (0)
Study Guide Answer
Mmapule can invoke the defence of private defence. Her conduct complied with all the requirements for private defence. There was, inter alia, a reasonable relationship between the attack and the defensive act. Strict proportionality is not required (i.e. there need not be a proportional relationship between the weapons or means used by the attacker and the weapons or means used by the attacked party). The nature of the interest threatened and the nature of the interest impaired need not be similar. The proper consideration is whether, in the light of all the circumstances, the defender acted reasonably. See the case of Steyn 2010 (1) SACR 411 (SCA) in Reader p. 62. Also see SG 5.3 and especially SG 5.3.3(3).
Dipuo recently gave birth. She is still in hospital. One night she gets up from her bed, walks to the ward where the babies are kept, and strangles her baby. Discuss whether Dipuo can be convicted of murder or any other crime if the evidence reveals the following: Dipuo suffers from schizophrenia, a well-known disease of the mind, and was labouring under hallucinations when she killed her baby. She was seeing monsters and hearing a voice instructing her to destroy the “monster lying in the cradle”.
My Answer
Dipuo’s proven pathological disturbance of the mental faculties excludes criminal liability for her actions, and she cannot be found guilty of murder or any other crime based on the defence of mental illness. Should her defence succeed, the court may issue any one of the following orders:
- Dipuo be admitted to, and detained in, a psychiatric institution.
- Dipuo be released subject to such conditions as the court considers considers appropriate.
- Dipuo be released unconditionally.
Study Guide Answer
The court will most probably find that X lacked criminal capacity at the time of the events. Since Dipuo was suffering from a mental illness when she killed baby Mathapelo, she will be found not guilty in terms of section 78(1) of the Criminal Procedure Act 51 of 1977. In terms of this section, Dipuo clearly complies with the pathological leg of the test for criminal incapacity. From the facts it is apparent that she lacked the ability to appreciate the wrongfulness of her act. She therefore also complies with the psychological leg of the test for criminal incapacity, more specifically because she lacked the ability to differentiate between right and wrong (i.e., the cognitive function). This incapacity can be attributed to the mental illness from which she was suffering (schizophrenia, with accompanying hallucinations). See SG 8.2.
Which rules should be applied to determine whether or not a youth has criminal capacity?
My Answer
- A child who commits an offence while under the age of 12 years is irrebutably presumed to lack criminal capacity
- A child who is 12 years of age or older but under the age of 14 and who commits an an offense is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity.
- The state must prove beyond reasonable doubt the capacity of a child who is 12 years of age or older but under the age of 14 to appreciate the difference between right and wrong at the time of commission of an alleged offence and to act in accordance with that appreciation
Study Guide Answer
(1) A child under the age of 12 years is irrebuttably presumed to lack criminal capacity. A child can therefore never be convicted of any crime on the basis of an act or omission committed before his or her tenth birthday.
(2) A child who is 12 years old or older but under the age of 14 is rebuttably presumed to lack criminal capacity. A child who falls in this age group can therefore be convicted of a crime if the state rebuts the presumption of criminal incapacity beyond reasonable doubt.
See SG 8.4 and “Amendments to Study Guide NB!” uploaded on the CRW2601 Announcements.
Tanya is the mother of a five-year-old boy, and a single parent. One night, at 04:00, she is woken by the sound of a person walking down the passage of her house. She gets up, grabs her pistol and creeps down the passage. In the dark lounge she sees a figure moving behind the sofa. Fear overcomes her and, believing it to be a burglar who is hiding behind the sofa, she fires a shot in the direction of the sofa. After the noise has died down, she inspects the scene and finds that she has killed her five-year-old son. It appears that the boy was sleepwalking when his mother mistook him for a burglar and shot him. Can Tanya be convicted of murder or any other crime? Discuss.
My Answer
This is a classic case known as putative private defense, and she acted unlawfully because she cannot rely on private defence. The test in respect of private defence is, in principle, objective, and in a case such as this, her state of mind is not taken into account when determining whether she acted in private defence. Nevertheless, although she intended to kill another human being, she will not be guilty of murder, because her knowledge did not extend to exclude the unlawfulness of her act. She thought she was acting in private defence and, therefore, that she was acting lawfully, as it was held in the Joshua case.
Study Guide Answer
Tanya must be acquitted of murder. Although, objectively speaking, no situation of private defence actually existed and Tanya therefore cannot successfully rely on the ground of justification known as private defence, she lacked the intention required for a conviction of murder because she erred in respect of the unlawfulness of her act. She believed that she was acting in private defence. See SG 10.6.1. (Note that this situation differs from the one described in question 5. There, Tanya lacked the ability to appreciate the wrongfulness of her act.) Tanya could possibly be convicted of culpable homicide. This would be the case if a reasonable person in her position would have foreseen that the figure behind the sofa might not be an attacker (in other words that this is not a situation of private defence) and that her conduct could lead to the death of an innocent person. A reasonable person would have taken steps to prevent harm being caused to an innocent person and Tanya’s conduct therefore differed from that which is expected from a reasonable person.
Thabo and his entire family go boating at the local dam. Thabo drinks one beer after the other and decides to race around the dam in his ski-boat. Thabo steers the boat. As he is intoxicated, Thabo fails to keep a proper lookout and runs over Jacob, who is swimming in the dam. Jacob succumbs owing to blood loss from a wound to his head made by the propeller of Thabo’s boat. The court finds that, although Thabo was not so intoxicated that he lacked criminal capacity, he was so intoxicated that he could not have had the intention to cause Jacob’s death. Can Thabo be convicted of a contravention of section 1 of Act 1 of 1988 and/or culpable homicide?
My Answer
Thabo can be convicted of culpable homicide because the intoxication was not sufficiently serious to render Thabo’s act involuntary or to exclude criminal capacity, but serious enough to exclude his intention.
Study Guide Answer
Thabo cannot be convicted of a contravention of section 1 of Act 1 of 1988. Section 1 does not make provision for the case where Thabo’s intention is excluded as a result of intoxication. A case such as Chretien will therefore not be affected by section 1. See SG 12.5.3 and especially SG 12.5.3(2). (If Thabo were so drunk that he lacked criminal capacity, the section would find application.) Thabo can, however, be convicted of culpable homicide. This ought to be the case in casu, since the reasonable person would not have raced around in a boat after such an excessive intake of alcohol. See SG 12.6.
Vusi and Mbongeni are both taxi drivers. They work in the same areas and use the same route. Vusi knows that Mobongeni’s taxi is always filled to capacity. Vusi feels that he has the sole right to that particular route, and decides to shoot and kill Mbongeni. One day, having stopped next to each other at a red traffic light, Vusi is overcome with anger. The windows of Mbongini’s taxi are tinted, so that it is impossible to see whether there are any passengers inside. Vusi fires a shot in the direction of the driver’s seat of Mbongeni’s taxi, hoping to kill Mobongeni. The bullet misses Mbongeni, but hits Lerato, who is sitting next to Mbongeni. Lerato is very badly wounded, but miraculously survives. Discuss Vusi’s criminal liability.
My Answer
Vusi’s acted with dolus eventualis because the causing of the forbidden result was not his aim, but he had subjectively foreseen the possibility that in striving towards his main aim of shooting and killing Mbongeni, his conduct may cause the forbidden result, which is shooting innocent passengers inside the taxi, but he reconciled himself to the possibility.
Study Guide Answer
This is a situation of aberratio ictus. Aberratio ictus is not a form of mistake as Vusi aims correctly at his target but misses due to a lack of skill. Vusi can be convicted of malicious injury to property because he shattered the taxi window. He had intention in the form of dolus indirectus (indirect intention) in respect of the window. Vusi can be convicted of the attempted murder of Mbongeni, since he had dolus directus (direct intention) to kill Mbongeni, even though he did not kill him. Vusi can also be convicted of attempted murder in respect of Lerato. Vusi knew that Mbongeni’s taxi is always filled to capacity. The court will in all probability come to the conclusion that Vusi had foreseen the possibility that he could miss Mbongeni and kill a passenger sitting next to the driver, and that he had reconciled himself to such a possibility. Such a conclusion would be fair, since Vusi had fired a shot at the driver’s seat despite the tinted windows, knowing full well that Mbongeni’s taxi was usually filled to capacity
Thabo, Jabu and Menzi decide to steal money from Samuel, a shopkeeper. Thabo tells Jabu and Menzi that he knows that Samuel does not possess a firearm. He also tells them that, although none of them has a firearm, he (Thabo) has a toy pistol with which he plans to threaten Samuel. They then decide that the three of them will go to the shop and that Thabo will point the toy pistol at Samuel and threaten to shoot him if he does not hand over the money in the cash register. Before going to the shop, Jabu sees Thabo concealing a sharp knife under his clothes. He foresees that Thabo may use the knife in the shop and that somebody may get killed as a result. However, he does not say anything to Thabo about the knife and voluntarily goes with the others to the shop. Menzi does not know that Thabo has a knife concealed under his clothes. Thabo, Jabu and Menzi go into the shop. Thabo points the toy pistol at Samuel and threatens to shoot him if he refuses to hand over the money. A scuffle ensues, and during the commotion, Jabu and Menzi remove the money from the cash register. In the course of the scuffle between Thabo and Samuel, Thabo draws the knife from under his clothes and stabs Samuel in the chest while Jabu shouts: “Kill him!”, Jabu and Menzi run away with the money. Samuel dies as a result of the stab wound. Discuss the question of whether Thabo, Jabu and Menzi may all be convicted of murder in terms of the doctrine of common purpose
My Answer
According to the doctrine of common purpose, Thabo and Jabu can be convicted of murder because Jabu was aware that Thabo had concealed a knife and may have used it in the shop and as a result, somebody might get killed but he reconciled himself to the possibility and therefore, even though he did not stab Samuel, he had a common purpose with Thabo: to kill him and as such, Thabo’s act will be imputed to him. In case of Menzi, he was unaware that Thabo had a knife and therefore did not foresee that Samuel might get stabbed and killed in the process of the robbery, nor did he reconcile himself to the possibility, therefore, he cannot be convicted of murder.
Study Guide Answer
Thabo complies with all the requirements for murder. His act was the direct cause of Samuel’s death. Thabo’s act was unlawful. He cannot rely on any ground of justification. Because Thabo stabbed Samuel in the chest, the reasonable inference can be drawn that Thabo had intention to kill Samuel.
Jabu and Menzi can only be found guilty of murder if the state can prove that they shared a common purpose with Thabo to kill Samuel. The mere fact that they all had the intention to rob Samuel is not necessarily sufficient to warrant the inference that all of them also had the common purpose to kill. A common purpose is established by proving a previous agreement to kill or active association with the execution of the common purpose (Safatsa; Mgedezi). In terms of the doctrine of common purpose, Thabo’s act of killing Samuel is then imputed to the other accused. The intention or purpose which triggers the operation of common purpose is not confined to dolus directus but includes dolus eventualis. It may be argued that Jabu had performed an act of association with the execution of the common purpose by shouting “Kill him!” and he had intention to kill in the form dolus eventualis. He knew that Thabo had a knife with him and foresaw the possibility that Thabo might use the knife in the shop and that somebody might get killed as a result and reconciled himself with this possibility (Mambo).
