Chapter 01: Introduction

Introduction

One is only criminally liable and subject to punishment if the following requirements
are met.[1] It must be proved, beyond any reasonable doubt, that the accused
committed some wrongful conduct which coincided in time[2] with a culpable/guilty
mental state. For illustration purposes, it will be helpful to bear the definition of the
crimes of murder and culpable homicide in mind. Murder is defined as the
intentional unlawful killing of another human being. Culpable homicide is defined
as the negligent unlawful killing of another human being. Notably, the two crimes
are identical, except that murder requires intention, while culpable homicide requires
negligence.[3]

Wrongful/Unlawful[4] conduct (also known as the actus reus) requires conduct, in

the form of an act or omission, which is voluntary and is wrongful/unlawful.
A culpable mental state (also known as mens rea) requires, on the current law, at
least ‘capacity’ and – at least for all serious crimes – some form of fault (intention
or negligence).

Voluntariness

Conduct must be voluntary – without exception. Conduct is regarded as voluntary

when it is controlled by an accused’s will.[5] Involuntary conduct is also known as
an automatism – from the notion of an automaton. So fundamental is this
requirement that if it is absent the enquiry into liability ends – the accused cannot be
liable.[6] ‘In the context of a person who acts involuntarily there is no need to proceed
any further in determining liability because such person will inevitably also lack
capacity and, incidentally, mens rea (culpable mental state) as well. ‘No-one doubts
the all-embracing nature of the defence of automatism that swallows up all other
defences.’[7]

Unlawfulness

Unlawfulness is the requirement which is excluded when what one does is justified.
One is justified in one’s conduct when what one does is the right thing to do - all
things considered.[8] Possibly the most well-known justification (known as a ground
of justification) is self-defence – more technically known as private defence. Our
law recognises that one’s conduct is justified and therefore lawful in private defence
when, in response to an unlawful imminent[9] or commenced attack upon a legally
protected interest, one resorts to the use of necessary and reasonable force against
the attacker.[10] Other grounds of justification recognised in our law include
necessity (also known as compulsion or as duress in other jurisdictions), consent,
and de minimis.[11] The list of grounds of justification that have been recognised is
not closed so that new grounds of justification may be recognised. [12] The ultimate
test of unlawfulness, and for grounds of justification,[13] is the legal convictions of
the community,[14] as informed by the values in the Constitution.[15]

Causation

In addition to the above, causation is required for consequence crimes.[16] These are
crimes where the conduct which is prohibited is the causing of some prohibited
consequence. For instance, for murder,[17] the prohibited conduct is the causing of
the death of another human being. In contrast, other crimes, known as circumstance
crimes,[18] prohibit a particular state or circumstance, such as the possession of
drugs. Notice the essential distinction is that, for consequence crimes, the conduct
in question must cause some prohibited consequence whereas for circumstance
crimes, this is not true. There is no need for anything to be caused by the possession
of the drugs for that conduct requirement to be satisfied.

When an accused is charged with a consequence crime, the prosecution must prove
that the conduct of the accused caused the prohibited consequence. Our courts adopt
a two-phase enquiry[19] into causation. The first stage is an enquiry into factual
causation, by means of the conditio sine qua non test.[20] The second stage is an
enquiry into ‘legal causation’, based on policy considerations of reasonableness,
fairness, and justice, as informed by various specific tests of legal causation. [21]

Capacity

Capacity is the ability to appreciate the wrongfulness of one’s conduct and to act in
accordance therewith.[22] The capacity to appreciate the wrongfulness of one’s
conduct is known as the capacity for insight. The capacity to act in accordance with
an appreciation of wrongfulness is known as the capacity for self-control. Capacity
is present only when the accused possessed both capacities. That is, capacity requires
the ability both to appreciate the wrongfulness of one’s conduct, and the ability to
act in accordance with an appreciation of the wrongfulness of one’s conduct.

Capacity is fundamental to all criminal liability and there are no exceptions. It ‘is an
indispensable component of culpability…’[23] and therefore of criminal liability.
While our law knows of an exception (known as strict liability – discussed below)
to the rule that fault is always required in some form – this only excludes the
requirement of fault (intention or negligence).

Fault

Most crimes, certainly all serious crimes, also require some form of ‘fault.’ Fault
may take the form of either intention or negligence. Crimes that require no form of
fault are known as ‘strict liability offences. Strict liability offences are offences for
which no form of fault is required, that is, neither intention nor negligence is
required.[24] Certain traffic offences are strict liability offences. It is not that fault is
excluded but rather that fault is just irrelevant. Strict liability only affects whether
fault is required and does not affect the requirements of conduct, unlawfulness, or
capacity.[25]

Fault in the form of intention is required for all common law crimes,[26] except
culpable homicide[27] and contempt of court by a newspaper editor,[28] for which
negligence is sufficient. Intention in South African criminal law is widely defined to
include dolus eventualis - constructive intention. Dolus eventualis exists when an
accused foresees that his/her conduct poses a risk that the prohibited consequence
could occur (or a prohibited circumstance could arise), reconciles him/herself to the
risk, and persists.[29]

Negligence is judged by the reasonable person test. An accused is judged to have

been negligent if his/her conduct deviates from the standard of conduct of a
hypothetical reasonable person in the circumstances of the accused.[30]

One additional point – of great importance – must be observed. To incur liability,

the accused’s fault must extend to all the elements (requirements) of the actus
reus.[31] Thus, where the form of fault required for an offence is intention (such as
for murder), the accused must intend to kill another human being, but also, to do so
unlawfully - that is, s/he must know or foresee[32] that s/he is unlawfully killing
another human being. If the form of fault required is negligence, then it must be the
case that the accused negligently[33] unlawfully killed another human being. As a
result, an accused who is ignorant or mistaken as to the fact that s/he is killing
another human being or that s/he is doing so unlawfully, has a valid and complete
defence where the form of fault required is intention (murder). However, this
defence will only be valid and complete where the fault required is negligence
(culpable homicide), if the mistake is reasonable – the sort that a reasonable person
may make.[34]
Contemporaneity

Contemporaneity is the principle that requires that the accused’s wrongful conduct
must coincide in time with his/her culpable mental state. [35] It is often regarded as
offering a possible defence in which an accused will point to a disjunction in time
between his/her wrongful conduct and culpable mental state.[36] Moseneke J
in Thebus observed:

The definitional elements or “the minimum requirements necessary to

constitute a meaningful norm” [footnote omitted] for a common law crime are
unique to that crime and are useful to distinguish and categorise crimes.
Common minimum requirements of common law crimes are proof of unlawful
conduct, criminal capacity and fault, all of which must be present at the time
the crime is committed.[37]

The only apparent exception to this is known as antecedent liability - deriving from
the principle of action in libera causa. Under this principle – which is in fact nothing
more than an application of the requirement of contemporaneity [38] - an accused who
ostensibly commits wrongful conduct at some time while lacking voluntariness,
capacity, or fault, may yet incur liability for antecedent (prior) conduct, if all (other)
requirements of liability are present at the time of this antecedent conduct, including
that this (antecedent) conduct must be causally linked to the prohibited
consequence.[39] Antecedent liability therefore does not find application in the
context of circumstance crimes – where it is unable to resolve the problem that an
accused was involuntary in the prohibited circumstance. This is because
circumstance crimes require that the accused must be voluntary in the circumstance
and voluntarily causing the prohibited circumstance does not constitute a crime for
the purposes of circumstance crimes.[40]

Onus of Proof

It is well known that, in criminal trials, the prosecution bears the onus of proof, to
prove its case, that the accused is guilty, beyond a reasonable doubt. This follows
from the right to be presumed innocent in the Constitution. There is only one
notable[41] exception to this – in respect of a defence of pathological
incapacity,[42] in respect of which, the accused must raise more than a reasonable
doubt to succeed with this defence. An accused who raises this defence must show,
on a balance of probabilities (that it is more likely true than not) that s/he lacked
criminal capacity because of a mental illness or intellectual disability. Incidentally,
even other claims of incapacity (that is, for other reasons) do not place this burden
of proof on an accused. Notably, whenever an offence which places such a burden
on the accused has been brought to the attention of our Constitutional Court, it has
struck the burden down as unconstitutional on the basis that any burden placed on
an accused, which allows for his/her conviction, in the face of a reasonable doubt as
to his/her guilt, violates the presumption of innocence.[43] It is to be expected that,
if challenged, the burden placed on accused people who seek to raise the defence of
pathological criminal incapacity, will meet a similar fate.

What though does it mean that the prosecution must prove that the accused is guilty,
beyond a reasonable doubt? It means that the accused needs to only raise a
reasonable doubt that s/he is guilty – even a single reasonable doubt – even in respect
of a single requirement for liability. This is the extent of the onus on the prosecution.
It gives effect to the deeply entrenched principle that, given the serious consequences
of a conviction, an accused should be given the benefit of any doubt.

Conclusion

In conclusion therefore, criminal liability attaches to conduct which is voluntary and

unlawful if the accused had capacity and the relevant form of fault at the time of
his/her conduct. In addition, if the crime is a consequence crime, the accused must
have caused the prohibited consequence. All of this must be proved by the
prosecution, beyond a reasonable doubt.

[1] Other ways of grouping requirements exist (CR Snyman Criminal Law 5th ed
(2008) 33ff). However, this method is consistent with practice and captures all that
is necessary. Snyman argues that a separate requirement of ‘compliance with the
definitional elements’ is required since each crime prohibits conduct, not just any
conduct (ibid 30 & 4). He is obviously correct. However, the enquiry into conduct
must necessarily concern itself with conduct that is prohibited, and not just any
conduct. When one enquires into whether conduct may be attributed to the accused,
the question is – necessarily – whether the accused did what is prohibited under some
crime. As Visser and Maré note ‘conduct in the criminal law refers not only to action
or inaction, but to such action or inaction in all the relevant circumstances of the
particular proscription in question’ (PJ Visser & MC Maré Visser & Vorster's
General Principles of Criminal Law Through the Cases 3rd ed (1990) 46).
Snyman also prefers to combine the requirements of capacity and fault under the
heading of culpability – though they remain separate requirements. De Wet and
Swanepoel (J. C. De Wet Strafreg 4 ed (1985) 110; endorsed in S v Laubscher 1988
(1) SA 163 (A); S v Calitz 1990 (1) SACR 119 (A); S v Wiid 1990 (1) SACR 561
(A)) are of the view that capacity forms a separate independent requirement
within mens rea. These views are reconcilable within the framework proposed
above.

[2] Known as the requirement of contemporaneity (see under the heading

‘Contemporaneity’ on page 19).

[3] The difference is explained below under the heading ‘Fault’ (on page 18).

[4] In criminal law the term ‘unlawful’ is used instead of ‘wrongful’. However, the
term wrongful will sometimes be used here to assist in conveying the meaning of
‘unlawful’ conduct.

[5] S v Chretien 1981 (1) SA 1097 (A); J Austin Lectures on Jurisprudence 3rd ed
(1869) 426, reported in W. Wilson Criminal Law: Doctrine and Theory (1998) 220;
Andrew Ashworth Principles of Criminal Law 2nd ed (1997) 96-7; Jonathan
Burchell Principles of Criminal Law 3rd Revised ed (2006) 180; Ronald Louw 'S v
Eadie: Road Rage, Incapacity and Legal Confusion' (2001) 14 SACJ 207; Deborah
W. Denno 'Crime and Consciousness: Science and Involuntary Acts' (2002) 87
Minnesota Law Review. See also Leon 'Responsible Believers' (2002) 85 The
Monist; Charles Taylor 'Responsibility for Self' In Free Will edited by Gary Watson
111-26 (1982); Gary Watson 'Free Agency' (1975) 72 Journal of Philosophy; Wolf
'Sanity and the Metaphysics of Responsibility' In Free Will edited by Kane (2002)).

[6] S v Johnson 1969 (1) SA 201 (AD); S v Chretien 1981 (1) SA 1097 (A); R v
Kemp [1957] 1 QB 399 at 407; SHC 18; R v Schoonwinkel 1953 (3) SA 136 (C); R
v Victor 1943 TPD 77.

[7] J Burchell 'A provocative response to subjectivity in criminal law' (2003) Acta
Juridica 36. See also S v Chretien 1981 (1) SA 1097 (A).

[8] L Austin Philosophical Papers (1970); G P Fletcher Rethinking Criminal

Law (1978); HLA Hart Punishment and Responsibility (1968) 13-4; S v
Trainor 2003 (1) SACR 35 (SCA).

[9] Subject to the judgment in S v Engelbrecht 2005 (2) SACR 41 (WLD).

[10] R v Zikalala 1953 (2) SA 568 (A); R v K 1956 SA 353 (A); R v Patel 1959 (3)
SA 121 (A); S v Jackson 1963 (2) SA 626 (A).

[11] De minimis is the defence that our law does not take account of trivialities.

[12] On this point, as Snyman notes, all writers in criminal law agree
(Snyman Criminal Law 5th ed (2008) 97).

[13] Which are merely crystallised and well recognised exceptions to unlawfulness,
such as private or self-defence, necessity, and consent (ibid 97-8).

[14] S v Chretien 1981 (1) SA 1097 (A) 1103D-F; S v Gaba 1981 (3) SA 745 (O)
751; Clarke v Hurst NO 1992 (4) SA 630 (D); S v Fourie 2001 (2) SACR 674 (C)
681A-B. See also, in the context of the law of delict, Minister van Polisie v
Ewels 1975 (3) SA 590 (A)regarding the ‘wrongfulness’ of an omission. It may be
worth noting that while different consequences may flow in the law of delict
compared with the criminal law, ‘the test for unlawfulness is identical in delict and
criminal law’ (Visser & Maré Visser & Vorster's General Principles of Criminal
Law Through the Cases 3rd ed (1990) 180). Van der Westhuizen argues that it is
impossible for conduct to be wrongful in one field of law and yet lawful in another
(Van der Westhuizen 'Noodtoestand as Regverdigingsgrond in die Strafreg'
University of Pretoria 1979)).

[15] Constitution of the Republic of South Africa 108 of 1996. See Carmichele v
Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001
(4) SA 938 (CC); Minister of Safety and Security v Van Duivenboden 2002 (6) SA
431 (SCA); Van Eeden v Minister of Safety and Security (Women's Legal Centre
Trust, as Amicus Curiae 2003 (1) SA 389 (SCA); Snyman Criminal Law 5th ed
(2008) 97-8.

[16] Also known as materially defined crimes (Snyman Criminal Law 5th ed (2008)
79).

[17] Defined as the unlawful intentional killing of another human being.

[18] Also known as formally defined crimes (Snyman Criminal Law 5th ed (2008)
79).

[19] Minister of Police v Skosana 1977 (1) SA 31 (A) 34; Road Accident Fund v
Russel 2001 (2) SA 34 (SCA) para 17; S v Daniëls 1983 (3) SA 275 (A) 324-5 &
31; S v Mokgethi 1990 (1) SA 32 (A) 39.
[20] Minister of Police v Skosana 1977 (1) SA 31 (A) 33-5, & 43-4; S v
Daniëls 1983 (3) SA 275 (A) 324 & 31; S v Haarmeyer 1971 (3) SA 43 (A) 47; S v
Mokgethi 1990 (1) SA 32 (A) 39.I anticipate that the judgement from Lee v Minister
of Correctional Services (Dudley Lee v Minister of Correctional Services CCT
20/12 ZACC 30) will not find application in the criminal law on the basis that it
appears to disengage the enquiry into causation from an accused’s conduct or does
not alter our law.

This test effectively requires that one imagine away the conduct in question and
consider whether the prohibited consequence would (hypothetically) not have
occurred. If, upon imagining the conduct in question away, the prohibited
consequence would (hypothetically) not have occurred, then the conduct in question
is regarded as a factual cause.

[21] International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A); S v
Mokgethi 1990 (1) SA 32 (A). Standard Chartered Bank of Canada v Nedperm Bank
Ltd 1994 (4) SA 747 (A) para 18per Corbett CJ: ‘factors such as reasonable
foreseeability, directness, the absence or presence of a novus actus interveniens,
legal policy, reasonability, fairness and justice’. Road Accident Fund v Russel 2001
(2) SA 34 (SCA) paras 17– 9; Smit v Abrahams 1994 (4) SA 1 (A).

[22] Burchell Principles of Criminal Law 3rd Revised ed (2006) 358; J M

Burchell South African Criminal Law & Procedure: General Principles Vol 1
(1997); F Rumpff Report of the Commission of Inquiry into the Responsibility of
Mentally Deranged Persons and Related Matters (1967). These capacities are
derived from the defence of pathological incapacity (formerly known as the insanity
defence) contained in s 78 of the Criminal Procedure Act 51 of 1977(Ronald Louw
'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ
200).

[23] Snyman Criminal Law 5th ed (2008) 159.

[24] Ibid 245; Burchell Principles of Criminal Law 3rd Revised ed (2006) 545.

[25] E M Burchell, J R L Milton & J M Burchell South African Criminal Law and
Procedure: General Principles of Criminal Law 2nd ed Vol 1 (1983) 217; Jonathan
Burchell South African Criminal Law & Procedure: General Principles of Criminal
Law 4th ed Vol 1 (2011) 453.
[26] Crimes defined by judgments of courts – as opposed to crimes created and
defined by parliament (known as statutory crimes).

[27] The unlawful negligent killing of another human being.

[28] S v Harber 1988 (3) SA 396 (A).

[29] S v Ngubane 1985 (3) SA 677 (A); S v De Bruyn 1968 (4) SA 498 (A).
Academics have however been critical of this conception (R C Whiting 'Thoughts
on dolus eventualis' (1988) 1 SACJ; Paul T. Smith 'Recklessness in Dolus
Eventualis' (1979) 96 SALJ; Burchell, Milton & Burchell South African Criminal
Law and Procedure: General Principles of Criminal Law 2nd ed Vol 1 (1983)
147ff).

[30] Kruger v Coetzee 1966 (2) SA 428 (A); R v Mbombela 1933 AD 269; S v
Ngubane 1985 (3) SA 677 (A).

[31] S v De Oliveira 1993 (2) SACR 59 (A); Andrew Paizes ''Mistake as to the
Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between
Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ.

[32] Given that intention is widely defined in our law and includes dolus
eventualis (see note 29and associated text).

[33] Judged by the standard of the reasonable person (see note 30and associated
text).

[34] R v Mbombela 1933 AD 269; S v De Oliveira 1993 (2) SACR 59 (A).

[35] See R v Chiswibo 1961 (2) SA 714 (FC); S v Masilela 1968 (2) SA 558 (AD).
See also S v Goosen 1989 (4) SA 1013 (A)though the judgement has been subjected
to devastating criticism that it confused mistakes relating to causal sequence with
mistakes relating to causal acts (Paizes ''Mistake as to the Causal Sequence' and
'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the
Causal Element of the Actus Reus.' (1993) 110 SALJ.

[36] See R v Chiswibo 1961 (2) SA 714 (FC); S v Masilela 1968 (2) SA 558 (AD).

[37] Emphasis added, S v Thebus 2003 (6) SA 505 (CC) para 37.
[38] This is the ‘downside’ to contemporeneity for an accused: that whenever these
two elements do coincide in time, s/he is liable for the crime as having been
committed at the time that the two elements do coincide.

[39] Burchell South African Criminal Law & Procedure: General Principles of
Criminal Law 4th ed Vol 1 (2011) 70-1.

[40] Visser & Maré Visser & Vorster's General Principles of Criminal Law Through
the Cases 3rd ed (1990) 52.

[41] It is possible that other exceptions exist in respect of some obscure statutory
offences. One such exception, which received an unexcepted endorsement of the
Gauteng High Court may be found in section 1(2) of the Intimidation Act 72 of 1982
– see Moyo and another v Minister of Justice and Constitutional Development and
Others 2017 (1) SACR 659 (GP). The section provides as follows: ‘In any
prosecution for an offence under subsection (1), the onus of proving the existence of
a lawful reason as contemplated in that subsection shall be upon the accused, unless
a statement clearly indicating the existence of such a lawful reason has been made
by or on behalf of the accused before the close of the case for the prosecution.’ The
leaned judge took the view that the risk of anyone being convicted because they fail
to raise their defence on a balance of probabilities exists but is minimised because
the accused need only respond with this proof after the state has established a prima
facie case. [73ff] This logic is difficult to follow and stands in stark contrast to the
injunction in S v Coetzee – see below (note 43).

[42] Previously known as an ‘insanity’ defence. It is the defence that one lacks
capacity because of a mental illness or intellectual disability.

[43] S v Coetzee 1997 (3) SA 527 (CC). Arguments that such a violation may be
justified seem to rely on the risks associated with false claims and the difficulties of
proof that a prosecution may encounter in having to prove that an accused possessed
capacity (Card Card, Cross and Jones Criminal Law 19th ed (2010) 654-5 see R v
Chaulk (1991) 1 CRR 1 (SCC) in which the Canadian Supreme Court considered
the reverse burden a justified limitation on the presumption of innocence). Both
arguments are little more than an appeal to make the work of a prosecution easier –
and for reasonable doubts that would otherwise exist, to be ignored.
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