THEME 1

1 Study Theme: Criminal Law and the Legal

System
1.​ Place of criminal law

2.​ Distinction: Private Law versus Public Law

●​ Law
○​ No rigid definition
○​ NORMATIVE DEFINITION - A BODY OF RULES GOVERNING HUMAN
BEHAVIOUR, PRESCRIBED BY SOCIETY, APPLIED BY THE COURTS
AND ENFORCED BY THE EXECUTIVE - THIS IS A NORMATIVE
DEFINITION
○​ is traditionally divided into public law and private law.
○​ Public law regulates the relationship between the state as an authoritative
power and the subjects of the state
■​ Between state/public entities on a horizontal application as well as
between the state/public entities and individuals/legal subjects on a
vertical application
■​ The state as an authoritative power is always a party in public law.
■​ may be subdivided into constitutional law, administrative law and
criminal law.
○​ Private law regulates relationships between individuals as subjects of the
legal order.
■​ may be subdivided into the law of obligations, the law of succession
and the law of things
●​ DE LEGE LATA V DE LEGE FERENDA
○​ The law as it is VS the law as it should be
 3.​ Distinction: Material Criminal Law/Formal Criminal Law/Criminal Law of
Evidence
●​ Substantive (material) law: substantive legal rules setting out the rights and duties
of subjects or of the state
○​ It explains rights and duties
○​ Both public and private law form part of substantive law
○​ Criminal law forms part of substantive law
●​ formal criminal (procedural) law refers to rules setting out the procedure or
methods by which the rules of substantive law are enforced.
○​ It explains procedure and proof
●​ Formal criminal (procedural) law may be further subdivided into the law
relating to: criminal procedure, civil procedure and law of evidence.
○​ Criminal procedure is an important branch of the law, laying down the
procedure by which alleged criminals are brought before court and tried for
their alleged crimes.

PREFERENCE FOR SNYMAN OR BURCHELL? AND WHY?

●​ SNYMAN page 3:
○​ SUBSTANTIVE LEGAL RULES SETTING OUT THE RIGHTS AND DUTIES
OF SUBJECTS OR OF THE STATE
●​ BURCHELL page 1:
○​ THAT BRANCH OF NATIONAL LAW THAT DEFINES CERTAIN FORMS OF
HUMAN CONDUCT AS CRIMES AND PROVIDES FOR THE PUNISHMENT
OF THOSE PERSONS B WHO UNLAWFULLY AND WITH A GUILTY MIND
COMMIT A CRIME

4.​ The impact of the Constitution on Criminal Law: STUDY BURCHELL PAGE 3-47
Impact of the Constitution on Criminal Law

●​ In modern states, the principle of legality is crucial for protecting individual freedom
against the expansive powers of the state.
●​ The principle of legality is at the core of the rule of law doctrine because it upholds
the utility of fixed and certain rules.
●​ The Constitution recognises the principle of legality.
○​ Section 35(3) of the Constitution contains certain provisions relating to the
principle of legality.
○​ Section 35(3)(l) provides that every accused person has a right to a fair trial,
which includes the right “not to be convicted for an act or omission that was
not an offence under either national or international law at the time it was
committed or omitted”.
○​ Section 35(3)(n) relates to the nulla poena sine lege principle, that is, the role
of the principle of legality in the field of the imposition of punishment.
○​ Section 35(3)(l) and (n) contains no provision relating directly to the ius
certum and ius strictum principles, but the courts may interpret the provisions
of the section in such a way that it relates to these aspects of the principle of
legality as well.
●​ Section 8(1) of the Constitution states that the Bill of Rights applies to all law, and
binds the legislature, the executive, the judiciary and all organs of state.

2 Study Theme: Criminal Law and the Law of

Delict
Criminal Law and the Law of Delict

Crimes and delicts share similarities as unlawful, blameworthy acts or omissions.

●​ delict
○​ an unlawful, blameworthy act or omission resulting in damage to another,
giving the injured party the right to compensation
○​ Formal difference: delict is governed by rules of civil procedure
○​ material difference:
■​ Infringement of private interests
■​ Applicant institute action/motion proceedings
■​ Result: guilty party compensates the complainant/pays damages to
the injured party - the purpose of which is to put the complainant in the
same position he would have been in had the delict not been
committed.
●​ crime/offence
○​ unlawful, blameworthy conduct punishable by the state
○​ Governed by rules of criminal procedure
○​ Material differences:
■​ Crime is an infringement of community interests
 ■​ Falls under public law
■​ The State prosecutes in a criminal case - vertical relationship
■​ Result: state imposes punishment in the form of a
fine/imprisonment/community service with a view to retribution, the
prevention of crime, deterrence or the rehabilitation of the offender.

3 Study Theme: The Concepts 'Criminal Law' and

'Crime'
Learning outcomes

Criminal Law\Penal Law

-​ Defined above

Crime/Offence

●​ unlawful, blameworthy conduct punishable by the state

●​ The two words are used interchangeably
●​ The standard practice: referring to conduct prohibited by the common law as
“crimes”, and conduct prohibited by statute as “offences”
4 Study Theme: The History and Sources of
Criminal Law
(read only)

5 Study Theme: Determinism and Indeterminism

Lecture Outcome:

Doctrine of Determinism and Indeterminism

Determinism:
●​ “Anatomy is destiny”
○​ MAN IS UNABLE TO RISE ABOVE HIMSELF
 ○​ His actions are predetermined byhis genetic and biological make-up, or by the
social or climatic milieu in which he grew up
○​ man’s conduct is the result of blind causal processes
●​ This doctrine/school of thought eliminates culpability in criminal law
WHAT ABOUT THE MENTALLY ILL & CHILDREN?
●​ Can move from away from indeterminism towards determinism so as to eliminate
culpability

Indeterminism:
●​ man is free to overcome the limitations of his nature and to choose whether to
engage in conduct for which he will be held liable
●​ Has the ability to rise above forces of blind causal determinism
●​ Has freedom of will and ability to control his impulses and passions
Examples: ?

6 Study Theme: The Purpose and Function of

Criminal Law and Crime
purposes:
●​ To keep individuals accountable for the harm they cause
●​ To ensure public welfare
●​ To create/maintain order in society
●​ To protect society
●​ To enforce the boni mores of society
●​ To maintain the State

Effect on the Definition of Crime

●​
Criminalisation/Decriminalisation
●​ Criminalization: process by which certain conduct os declared a crime
○​ eg: new sexual offences act > certain forms of conduct were defined as new
crimes (not retrospective)
○​ eg: compelled sexual assault
○​ eg: Masiya case > criminalisation of anal rape (later discussed)

Decriminalization:
●​ Where existing crime is declared non-criminal/to no longer be crime
●​ Decriminalization leads to legalisation
●​ Eg: sodomy/seduction was removed as a crime (decriminalised) > in National
Coalition for Gay and Lesbian Equality v Minister of Justice
7 Study Theme: The Classification of Criminal Law
and Crimes
Learning outcomes

General principles/specific offences

●​ For X to be declared a criminal:

Statutory and common law offences:

●​ Statutory: crimes contained in legislation
●​ Common law: crimes not contained in legislation
​
Mala in Se/Mala Prohibita
●​ Mala in Se: crimes that are inherently serious
○​ For example, murder
●​ Mala Prohibita: crimes that are not inherently evasive/serious/shocking
○​ For example, traffic offences

CRIMINAL LAW PYRAMID: (DOWN TO UP)

THEME 2: Elements of Criminal
Liability

1 Study Theme: Legality

Learning Outcomes:

Nature of legality
“PRINCIPLE OF LEGALITY IS UNDERPINNED BY THE THEMES OF CONSTITUTIONAL
DEMOCRACY AND FAIRNESS AND THE DERIVED VALUES OF CERTAINTY AND FAIR
NOTICE. THESE THEMES AND VALUES WORK OUT AS CERTAIN PRACTICAL
APPLICATIONS OF THE DOCTRINE”
●​ legality is an important consequence of the separation of powers
●​ “jus dicere, non jus dare” : the court only speak the law, they do not create the law
●​ Must remember separation of powers between legislator, executive and judiciary
●​ Legality is thus the hallmark of a constitutional democracy
●​ All citizens (who are subjected to criminal prosecution) will have certainty
about the existence and sanctions of crimes thus it embodies the notion of fair notice,
judicial certainty and procedural fairness

Definition of Legality:
-​ an accused person may not be found guilty of a crime unless the type of conduct
with which he is charged:
1.​ Has been recognised by the law as a crime - ius acceptum (accused can only be
found guilty if conduct was recognised as a crime-courts may not create crimes)
2.​ Is in clear terms - ius praevium (accused can only be guilty of a crime of recognised
at time of commission)
a.​ Crime of non-retrospectivity
b.​ New crime has no retrospective factor
3.​ Before the conduct took place - ius certum (crimes should not be formulated vaguely)
4.​ Without the court having to stretch the meaning of the words - ius strictum ( definition
of crimes should be interpreted strictly)
AND after conviction an accused may not be sentenced unless the punishment also
complies with the four above principles

The 4 principles of legality thus are:

●​ ius acceptum principle:
○​ A court may find an accused guilty of a crime only if the type of conduct
performed by him is recognised, and accepted, by the law as a crime [see
(a)].
○​ A court itself may not create a crime
●​ ius praevium principle:
 ○​ A court may find an accused guilty of a crime only if the kind of act performed
by him was already recognised as a crime at the time of its commission [see
(c)].
○​ Accordingly, there is no retrospective action
●​ ius certum principle:
○​ Crimes should not be formulated vaguely [see (b)].
○​ The crime must be clear and certain – there should be no ambiguity and it
needs to be simple and understandable.
●​ ius strictum principle:
○​ A court should interpret the definition of a crime narrowly rather than broadly
[see (d)]
○​ .When interpreting the law, in favorem libertatis [translated: in favour of
liberty]. The law must be applied strictly
These 4 principles apply to sentence as well
POSSIBLE NUMBER 5:
●​ nulla poena sine lege principle [ nulla poena principle]:
○​ After a person has been found guilty, the abovementioned principles//rules
must be applied mutatis mutandis (as they are) when regarding imposing a
sentence; meaning that the applicable sentence must already have been
determined in reasonably clear terms by the law at the time of the
commission of the crime​

The principle of legality is incorporated in Section 35(3)(L) & (N) of the Constitution
●​ Section 35: every accused person has a right to a fair trial
○​ Paragraph (l) of this subsection provides that this right to a fair trial includes
the right not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was committed or
omitted
○​ Sec 35(3)(l) clearly incorporates the ius praevium principle
○​ By implication it also contains the ius acceptum principle: if a court may not
find a person guilty of an act or omission that was not an offence at the time it
was committed or omitted (ius praevium), it follows by necessary implication
that a court does not have the power to create a crime (ius acceptum)
○​ Paragraph (n), contains a further provision bearing upon the principle of
legality - According to paragraph (n) the right to a fair trial includes the right
to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the time
that the offence was committed and the time of sentencing.
○​ Sec35(n) relates to the nulla poena sine leges principle; this is the role of the
principle of legality in the field of impositions of punishment
■​ Nulla poena sine leges (or provision to create a crime, a statutory
provision or legal rule must exist indicating the type of punishment)
■​ Then after conviction, we must look that the same four requirements
(mutatis mutandis) when it comes to imposing a sentence
■​ The applicable sentence’s form and extent must be: already
determined, in clear terms at the time of commission, interpretation
must occur narrowly rather than widely and the court is not free to
impose any sentence other than the one legally authorised
 ■​ Implications of this definition:
■​ The principle of legality embodies the above rules
●​ The Constitution does not reference ius certum or ius strictum but may interpret the
section in a way that it relates to these aspects
●​ Principle of legality is entrenched in sec35 & sec172 (powers of courts in Consti
matters

Legal norm/criminal norm/criminal sanction

There are certain “building blocks” of legality, particularly according to the ius acceptum rule
in crimes created by parliament. Accordingly, if one of these building blocks are
missing, there is not legality. It is still essential, however, that the requirements [is
acceptum, ius strictum, ius praevium, ius certum] for legality are still complied with
●​ A legal norm:
○​ Only a mere prohibition
○​ An Act is merely a rule of law, the infringement of which is not a crime.
○​ Eg: You may not travel on a train without a ticket
●​ A criminal norm:
○​ Criminalising the prohibition to create a crime
○​ A provision in an Act stating clearly that certain conduct constitutes a crime.
○​ Eg: You may not travel on a train without a ticket and anybody contravening
this provision shall be guilty of a criminal offence.
●​ A criminal sanction:
○​ Punishing the crime or the penalty clause
○​ A provision in an Act prescribing the parameters of the punishment a court
must impose once a person has been found guilty of the particular crime.
○​ Eg: You may not travel on a train without a ticket and anybody contravening
this provision shall be guilty of an offence and punishable upon conviction
with imprisonment for a maximum period of three months or a maximum fine
of R1 000, or both such imprisonment and fine
In order to achieve legality think of it as applying 2 tests(note that all elements of the
test must be present to achieve complete legality)
1.​ The building block test: a legal norm, a criminal norm, a criminal sanction
2.​ The principle test: ius acceptum, ius certum, ius praevium, ius strictum

CASE LAW APPLICATION: AGAINST LEGALITY -= IUS DARE

Forlee 1917 TPD 52: nulla crimen sine lege

●​ Court wrongly read in the criminal sanction.
●​ This is a case dealing with the possession of opium. The provision did not have a
criminal sanction – there was a legal norm, which might have had a criminal norm.
The defence argued that there was no legality since there was an absence of the
sanction.
●​ The court read a criminal sanction in and convicted Forlee. The court had a right to
read a punishment. It was viewed that the fact that there was no sanction must have
been overlooked by the legislature.
●​ This is a case against the principle of ius dicere non dare and against the concept of
legality as a law was created the law, and it was not merely applied.

Masiya v DPP 2007 CC

●​ Masiya abducted a 9-year-old girl and had sexual intercourse per anum. He was
arrested and brought before the court.
●​ At that stage, the common law definition of rape did not include anal penetration, only
vaginal. However, the Magistrate convicted him of rape. The Sexual Offences Act
was not yet in operation.
 ●​ The matter went to HC and thereafter to the CC.
○​ The HC went along with the conviction from the Magistrate.
○​ The CC interpreted legality and the majority said that common law should be
developed and they also extended (Ius Dare) the common law definition to
include anal penetration without consent. O
●​ The legislature should have rectified it. Masiya was sent back to trial court but
because of ius praevium, it was not rape at the time and he was therefore only guilty
of indecent assault
●​ Now called sexual assault in Sexual Offences Act. Whoever comes after Masiya will
be convicted of rape, but only male on female, not male on male. Obviously, due to
the equality clause, this provision had implications.
●​ Timeline:
○​ Before May 2007:The common law definition was valid. Masiya’s conduct only
amounted to indecent assault and not rape.
○​ Since May 2007:The common law definition of rape was extended to include
rape by anal penetration, BUT this extension only was in relation to male on
female anal penetration. Without consent.
○​ Since 16 December 2007:The definition of rape was made to be gender
neutral in the Sexual Offences Act

CASE LAW: PRO LEGALITY = IUS DICERE

Von Molendorf 1978 (1) SA 135 (T): (REFUSED)
●​ A policeman assaulted the complainant. When C told P that she wanted to law a
charge of assault against him, he wanted C to make a sworn affidavit that he did not
assault her. It was then viewed that P was committing an act of extortion and he was
thereafter charged.
●​ The act of extortion only relates to patrimonial benefit and on appeal, the definition
was challenged, stating that P could not be guilty of extortion because the benefit
that he extorted was non-monetary.
●​ He was acquitted due to ius dicere

• LE GRANGE (CORRECT)***
●​

Mshumpa 2008 (1) SACR 126 (E): (CORRECT)

●​ court honouring the ius dicere non dare principle.
 ●​ The main question raised was whether an unborn child can be murdered. Currently,
in South Africa, there are no rights that are afforded to unborn children and since the
baby was not yet born, it could not have been murdered. oThe nasciturus fiction does
not extend to criminal law
●​ NB!!!!!! (EXPLAIN THE LEGAL ISSUES IN S V MSHUMPA 2008 1 SACR 126 (E))

Smith 1973 (3) SA 945: ius strictum (CORRECT)

●​ Photocopies of the pornographic material did not amount to photographic
reproduction. According to the ius strictum principle, therewas no photocopy
requirement contained in the definition.
●​ By applying the principle, the accused was acquitted.

Smit 2007 (2) SACR 335 (SCA): legality correctly applied

●​ A case concerning where administrative law overlaps with criminal law.oAn ultra vires
administrative act can lead to illegality
●​ Importance of Smit:
○​ AN ULTRA VIRES ADMINISTRATIVE ACT (EG ESTABLISHING A TOLL
ROAD WITHOUT CONSULTATION) CAN LEAD TO AN ILLEGALITY IN
CRIMINAL LAW IF THERE IS A PROSECUTION

NULLA POENA SINE LEGE (LEGALITY IN PUNISHMENT) •

●​ STUDY SNY: 49 PAR 11
●​ WHEN DEALING WITH PUNISHMENT (POENA) REGARD IS ALSO TO BE GIVEN
TO IUS ACCEPTUM, IUS CERTUM, IUS PRAEVIUM, IUS STRICTUM.
●​ THUS, THE RELEVANT RULES APPLICABLE TO NULLUM CRIMEN SINE LEGE
APPLY MUTATIS MUTANDIS ALSO TO NULLA POENA SINE LEGE

DPP v Prins 2012 (2) SACR183 (SCA):

●​ nulla poena sine lege// no punishment without a provision
●​ There was a legal provision without a punishment//penalty clause.
●​ Section 276 of the Criminal Procedure Act was seen as a generic provision, thus
implying legality.
●​ Sexual offences — Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 — Where no penalty prescribed in Act in respect of contravention —
Whether absence of penalty clause rendering criminalisation clause ineffective —
Provisions of ss 2 – 26 of Act couched in language that proclaims unequivocally that
their purpose is to render criminal conduct described therein — Act equally
unequivocal in its contemplation that on conviction courts will impose appropriate
sentence on accused — Applicability of s 276 of Criminal Procedure Act 51 of 1977
— Despite absence of penalty clause, courts entitled to convict and impose
punishment — Maxim nulla poena sine lege and principle of legality discussed
End!!
2 Study Theme: The Deed
Lecture Outline: An Act
Key Aspects of the Deed

●​ Act/Commission/Omission/Conduct: This constitutes the first element of a crime.

●​ Mere thoughts or plans do not qualify as a deed.
●​ The uttering of words can be considered a deed.
●​ The deed must involve human conduct.
●​ An animal can be an instrument in a deed.
○​ If a person uses an animal to commit a crime, they will be deemed to have
acted
●​ A legal person (company) can be involved in a deed.
 ○​ In this case the company will be found guilty of committing a crime if the
person who acted on behalf of the company did so within their capacity and/or
within the scope of the company's business
●​ Possession can be considered a deed.

Keys to Unlocking Questions on the Act

To address any question about the act, consider the following:

●​ Definition of "act".
●​ Definition of "voluntariness".
●​ Definition of "automatism".
●​ The effect of voluntariness and automatism.
●​ Definition of "antecedental liability."
●​ How to prove the defence of automatism.

Conduct (Act or Omission)

●​ Conduct is the first general requirement for criminal liability AFTER legality and
includes an act(commission) or an omission/conduct
●​ An "act" is sometimes referred to as "positive conduct," "commission," or commissio,
while an "omission" is considered "negative conduct," "failure to act," or omissio.
●​ sidenote: From a technical standpoint, an "act" and an "omission" are opposites, and
there isn't a single concept that includes them both. The word “conduct” is used as a
linguistic device to refer to both of them simultaneously.
●​ Legislations regularly refers to "act or omission".
●​ The word "act" is often used in a broad sense to refer to both an act and an omission.
●​ Imperative norms can only be infringed through an omission, whereas prohibitive
norms can be infringed through either an active conduct (commissio) or an
omission (omissio).

Omissions

●​ An omission is punishable only if there is a legal duty upon somebody to perform a

certain type of active conduct.
●​ A moral duty is not necessarily the same as a legal duty.

Limiting Scope of Criminal Liability

●​ The requirement of an act determines the outer limits of criminal liability.

●​ The act must be described to exclude irrelevant conduct or events, such as:
○​ Thoughts not yet transformed into an act.
○​ Non-human conduct (e.g., an animal's actions).
○​ Involuntary muscular movements (e.g., sleepwalking, compulsion, seizures).

Voluntary Conduct

●​ Only voluntary conduct is punishable.

 ●​ Conduct is voluntary if the accused can subject their bodily movements to their will,
intellect or consciousness and can make and execute decisions about their conduct,
preventing prohibited acts or results.
●​ The accused doesn't need to make a rational or well-considered decision.
●​ If X alleges that they acted involuntarily, they can raise the defence of automatism
○​ Involuntary conduct includes sleepwalking, epileptic fits, seizures, compulsion
etc

Grounds for Exclusion of Voluntariness

Voluntariness is excluded by:

1.​ absolute force (vis absoluta), where the ability to control bodily movements is
negated.
○​ For example, if someone grabs another's hand holding a knife and forces it
into a victim, the person holding the knife performs no act.
○​ It's also known as compulsion
○​ NB: DISTINGUISH THIS FROM RELATIE FORCE
2.​ Absolute Impossibility
○​ where a person fails to act in situation he or she could have prevented
○​ DISTINGUISH FROM RELATIVE IMPOSSIBILITY
3.​ Automatism
●​ Where a person alleges to not have acted voluntarily ie where a person acts
mechanically
●​ Automatism can negate voluntariness, but factors such as evidence of a motive, a
failure to raise the defence, or less than full amnesia can undermine the defence.

Sane automatism

●​ involves a mentally sane person acting involuntarily due to temporary

factors/conditions such as an epileptic fit. It is unconscious conduct not attributable to
any mental pathology. If successful as a defence, the accused leaves the court a free
person.
●​ Onus of proof: In cases of automatism due to involuntary conduct, the onus is on
the state to prove that the act was voluntary.
○​ The state must prove beyond reasonable that X acted voluntarily
○​ The state is assisted by the natural inference that, in the absence of
exceptional circumstances, sane persons who engage in conduct which
would ordinarily give rise to criminal liability do so consciously and voluntarily.

Insane automatism

●​ involves unconscious behaviour attributable to mental illness.

●​ This defence is one of mental illness.
●​ If successful, the accused is dealt with in terms of section 78(6) of the Criminal
Procedure Act (CPA) and is found not guilty but will have to be detained in a
psychiatric hospital and thus does not leave the court a free person.
 ●​ Onus of proof: In cases of unconscious behaviour attributable to mental illness, the
accused has to prove on a balance of probabilities that they suffered from a mental
illness.

AUTOMATISM NB!!!

●​ Courts approach automatism defences with "GREAT CIRCUMSPECTION". This

caution arises because someone who has no other defence is likely to resort to
automatism in an attempt to escape the consequences of their acts.
●​ "Evidence of mere loss of temper insufficient to infer automatic behaviour".
○​ simply claiming to have lost one's temper is not enough to substantiate a
claim of automatism.
○​ "X must lay proper foundation - EXPERT EVIDENCE NB! NB!".
■​ The accused (X) needs to provide a solid basis for the automatism
defence, and expert evidence is crucial. This typically involves
medical or other expert testimony to create reasonable doubt about
the voluntariness of the act.
○​ "Psychogenic amnesia - NOT automatism".
■​ Simply not remembering an event (psychogenic amnesia) does not
equate to automatism. The critical factor is whether the accused could
control their bodily movements at the time of the act, not whether they
can recall the events afterward

NB DO CASE LAW

Automatism case law:

Victor 1943

Stellmacher 1983

Henry 1999

McDonald 2000

Kok 2001

Eadie 2002

DPP v Venter 2009

Marx 2009

END!

Lecture Outline: A Consequence

Causation
 ●​ Causation is not a general element of liability. It is a way in which the definitional
elements of certain crimes are fulfilled and therefore forms part of the definitional
elements.

Rules for Determining Causation

●​ There are two steps to establishing causation namely factual causation and legal
causation
●​ To find that X’s act caused a certain condition, X’s act must first be a factual cause
and secondly a legal cause.

Factual and Legal Causation

●​ The courts have confirmed that to determine whether certain conduct has caused a
certain result, two requirements must be met:
●​ First, determine whether the conduct was a factual cause of the result (factual
causation).
○​ THE ACT (STAB WITH KNIFE) MUST HAVE BEEN THE FACTUAL CAUSE
OF Y’S DEATH AND
●​ Second, determine whether the conduct was also the legal cause of the result (legal
causation)
○​ THE ACT (STAB WITH KNIFE) MUST HAVE BEEN THE LEGAL CAUSE OF
Y’S DEATH

note: FACTUAL CAUSATION IS A PREREQUISITE FOR LEGAL CAUSATION

●​ Only if the conduct is both the factual and the legal cause of the condition can a court
accept that there has been a causal link between the conduct and the condition and
can court subsequently find criminal liability
●​ GENERAL:
○​ ONLY WITH CONSEQUENTIAL CRIMES (MURDER/CULPABLE HOMICIDE
– EMPHASIS IS ON CAUSING THE RESULT
○​ APART FROM THE OTHER ELEMENTS FOR LIABILITY (CONDUCT,
UNLAWFULNESS AND FAULT) IT IS REQUIRED THAT THERE SHOULD
BE A CAUSAL LINK BETWEEN THE ACT AND THE RESULT --for example:
WITH THE CRIME OF MURDER IT IS REQUIRED THAT THE STAB
WOUND ADMINSTERED BY X TOY’S BODY (UNLAWFULLY AND
INTENTIONALLY) ALSO CAUSED Y’S DEATH;

for factual causation:

●​ The test used here is the condition sine qua non test
●​ The Question to ask here: if X’s conduct is eliminated, would the result also fall
away?
○​ If yes, them X’s conduct is the factual cause

what about omissions?

●​ We use the conditio cum qua non test

 ●​ The question to ask here: if X acted positively would the result fall away?
○​ If yes, X’s conduct is the factual cause

Case law:

for factual causation:

●​ Definition:
○​ Factual causation Is established if a certain prohibited result was caused by
X’s act
○​ GENERALLY ALL THE RELEVANT FACTS AND CIRCUMSTANCES ARE
ASSESSED TO ENABLE THEASSESSOR TO CONCLUDE (ON ACCOUNT
OF GENERAL KNOWLEDGE AND EXPERIENCE THAT ACERTAIN
PROHIBITED RESULT (THE DEATH OF Y) WAS CAUSED BY X’S ACT
●​ The test used here is the condition sine qua non test

Conditio Sine Qua Non: establishing factual causation

●​ X’s act is a factual cause of the condition/result if X’s act cannot be thought away
without the result/condition disappearing at the same time.
●​ The Question to ask here: if X’s conduct is eliminated, would the result also fall
away?
●​ If yes, them X’s conduct is the factual cause
○​ Example: if one eliminates X’s act hypothetically and Y’s death would NOT
HAVE ensued, X’s act is the factual cause of Y’s death.
○​ But If one eliminates X’s act hypothetically and Y’s death nevertheless would
still have ensued, X’s act is not a factual cause of Y’s death.
○​ Example: If X wounds Y and Y later dies in hospital because he was
negligently treated, X’s act is, according to the conditio sine qua non theory,
nevertheless a factual cause of Y’s death, because if X had not wounded Y, Y
would not have been in hospital and would not have been negligently treated.
○​ Even if Y is already fatally ill and X merely hastens his death, X’s conduct can
still be the factual cause of death. That Y would in any event have been
executed a mere hour later, does not afford X a defence.
●​ The conditio sine qua non formula should not be rejected as a checking mechanism,
it has attained a firm footing in case law.

what about facual causation with regard to omissions?

●​ We use the conditio cum qua non test

●​ The question to ask here: if X acted positively would the result fall away?
○​ If yes, X’s conduct is the factual cause
●​ Case example: S V VAN AS.

Case law:

●​ Van As 1967(4) SA 594(A); Mokoena 1979(1) PH H 13(A); Van Heerden

Legal Causation
●​ The mere fact that X’s act is a factual cause of the forbidden situation is not sufficient
ground to find that there is a causal link between the act and the result. It must be
clear that the act is not merely a factual, but also a legal cause of the situation.
●​ legal causation means that the act must ALSO qualify as a cause of the prohibited
condition or result according to the criteria applied by the law.
●​ The legal criteria are narrower than those applied to determine factual
causation and are guided by normative value judgments or policy
considerations, and circumstances of each case, based on what is fair, just or
reasonable (to regard the act as a cause of the prohibited result/condition)
●​ Only an act which is a factual cause of the situation can qualify as a legal cause.

Tests for Legal Causation

●​ Different tests for legal causation have been suggested, but the most important are:
○​ Individualising theory
○​ Adequate causation
○​ novus actus interveniens (new intervening act)
●​ These tests are not applied in a fixed hierarchical order.

1.​ Individualising Theory:

●​ Court seeks for one specific condition which caused the result/may be taken as the
cause of the result
●​ It can also look for the “proximate cause” which refers to the the closest condition out
of all the conditions which likely caused the result
●​ Proximate cause
○​ Case law: S V MUBILA

2.​ Adequate Causation

●​ An act is the legal cause of a result if, according to human experience, in the
normal course of events the act has a tendency to bring about that result. This
means:
○​ If the act is likely to be followed by the result, or if the result is not so
dependent on other factors that it cannot be described as a probable or
foreseen result of the act, there is an adequate relationship between the act
and the result.
○​ If the result is very improbable, depending on the course of events or is
dependent upon a coincidence, or if the result could not reasonably have
been foreseen, the act is not the legal cause of the result.
○​ If the result is, in the light of human experience, an uncontrollable result, there
is no “adequate relationship” between the act and the result and the act
cannot be said to have caused the result.
Case law: S V LOUBSER

3.​ Novus Actus Interveniens

●​ Definition: abnormal, unexpected, extraordinary, independent intervening
act/occurance which breaks the chain of causation between a particular act and the
eventual consequence
●​ The question is whether a new, independent, unexpected or unusual event has
occurred which breaks the chain of causation.
●​ THE EFFECT OF A NAI IS THAT IT CAN BE A DEFENCE AGAINST CAUSATION
●​ Examples include:
○​ Natural forces
○​ Y’s own conduct
○​ The conduct of a third party
●​ Example: If Y, after being wounded by X, receives the best medical treatment, but
nevertheless dies, the negligent medical treatment is not regarded as a novus actus
interveniens, but if Y receives negligent medical treatment and as a result of such
treatment, which was administered in an unreasonable manner, dies, the negligent
treatment is a novus actus interveniens.

Case law:

●​ S V GROTJOHN
●​ WILLIAMS
●​ TEMBANI
●​ RAMOSUNYA
●​ COUNTER
●​ TEMBANI [SCA]

4.​ Forseeabilty theory

●​ definition: an act/conduct is a legal cause of a result if the result is reasonably
foreseeable for the ordinary person with normal intelligence and experience.
●​ Case law: S V JOHN
●​ This theory attempts to establish a link between an act and its consequence in
determining criminal liability.
●​ Negligence and Foreseeability:
○​ While the "take your victim as you find him" rule applies to causation, the test for
negligence itself involves reasonable foreseeability
○​ The question in determining negligence is whether the reasonable person in the
same circumstances would have foreseen the possibility of the harm
occurring
●​ However, the "take your victim as you find him" rule implies that once negligence in
respect of some harm is established, the perpetrator is liable for the full extent of
that harm, even if the extent was unforeseeable due to the victim's pre-existing
condition
Case law:

●​ S v Daniels: NB CASE

The case discussion of Daniels from the sources is as follows:

DANIELS

●​ FACTS: APP 1 AND APP 2 [DANIELS & BROTHER] AND DECEASED AND ONE M
IN TAXI.

S V DANIELS

●​ APP 1 SHOT DECEASED 2X IN HIS BACK, DEC FELL DOWN.

●​ APP 2 SHOT DECEASED, INDEPENDENT FROM APP 1, ONCE THROUGH THE
EAR – CAUSED IMMEDIATE DEATH.
●​ HEREAFTER APP 2 AND M LEFT THE SCENE.
●​ CAUSE OF DEATH?: 1) BRAIN DAMAGE AS RESULT OF BULLET WOUND IN
EAR.
●​ LEGAL QUESTION; DID APP 1 & 2 ACT IN COMMON PURPOSE?
●​ TRIAL COURT: APP 1 & 2 GUILTY OF MURDER BASED ON COMMON PURPOSE.
●​ SCA: HEARD BY 5 JUDGES.
●​ LEGAL QUESTION: APP 1 ALLEGED THAT HE DID NOT CAUSE THE DEATH;
APP 2 APPEALED ON TECHNICAL GROUNDS.
●​ UNDISPUTED FACT: DECEASED WOULD HAVE DIED WITHIN HALF HOUR
AFTER FIRST SHOT IF HE DID NOT RECEIVE MEDICAL TREATMENT.
●​ APP 1 ADMITTED THAT HE SHOT DECS TWICE IN THE BACK.
●​ APP 2 ADMITTED THAT HE SHOT DECS ONCE IN THE EAR – MADE
CONFFESSIONS TO MAGS.
●​ LEGAL QUESTION: WHETHER SHOTS FIRED BY APP1 CAUSED THE DEATH
EVEN THOUGH THE FATAL SHOT FIRED BY APP 2 WAS THE IMMEDIATE
CAUSE OF DEATH?.

MINORITY

●​ BOTHA AJ.
●​ NICHOLAS AAJ.
●​ FOUND BOTH GUILTY OF MURDER BASED ON COMMON PURPOSE.

MAJORITY

●​ VAN WINSEN AAJ: GUILTY ON ACCOUNT OF POLICY CONSIDERATIONS.

●​ TRENGOVE AJ: NOVUS ACTUS: APPEAL SHOULD SUCCEED.
●​ JANSEN AJ: GUILTY ON ACCOUNT OF POLICY C.
●​ CP NOT PROVEN BRD.

ESSENTIAL QUESTION
 ●​ X WOUNDS VICTIM SERIOUSLY TO THE EFFECT THAT VICTIM WOULD DIE
WITHIN 1 HOUR.
●​ THEN Z COMES ON THE SCENE, INDEPENDENTLY FROM X AND APPLIES THE
FATAL WOUNG TO THE VICTIM.
●​ IS X ALSO THE LEGAL CAUSE OF DEATH DESPITE THE ACTIONS OF Z?.

RULING IN DANIELS

●​ JANSEN AJ AND VAN WINSEN AAJ

●​ FOR CRIMINAL LIABILITY WHAT IS REQUIRED: FACTUAL CAUSATION + LEGAL
CAUSATIO.
●​ CONDITIO SINE QUA NON TOO WIDE AND TO BE NARROWED BY LEGAL
CAUSATION.
●​ SUGGESTION OF ADEQUATE CAUSATION [[JANSEN AJ].

But…THE IMPORTANCE OF DANIELS!!

●​ AN ACT CAN BE THE LEGAL CAUSE OF A CERTAIN RESULT [ON ACCOUNT

OF POLICY CONSIDERATION] EVEN THOUGH THAT ACT WAS NOT THE
IMMEDIATE CAUSE OF DEATH!!!!!!!!!!!!!!!!!!!!.
●​ COURTS ARE GUIDED BY POLICY CONSIDERATIONS.
●​ CRITICISM OF TRENGOVE AJ?.

OUTCOME OF DANIELS?

●​ APP 1: APPEAL FAILS – GUILTY OF MURDER.

●​ APP 2: WAS THE IMMEDIATE CAUSE OF DEATH BUT APPEAL SUCCEEDS ON
ACCOUNT OF TECHNICAL REASONS, ADMISSIONS BEFORE MAGS: NOT
GUILTY!!!.

SPECIFIC CAUSATION QUESTIONS

●​ X seriously wounds Y. If Y does not receive urgent medical treatment within 2

hours Y will die. Z arrives on the scene, independently of X. Z shoots Y through
the head as a result of which Y immediately dies. Can it be found that X
nevertheless caused Y’s death? (Daniels);.

6 March: Practice questions

Right, let's break down the criminal liability of X and Y in these scenarios based on the
principles of criminal law outlined in the sources.

1. Discuss X and Y’s criminal liability on a charge of murder (8)

In this scenario, X and Y decide to rob a fuel station together.

●​ Liability of X:​
○​ X entered the shop, produced a firearm, and demanded cash from Z
[Scenario]. This conduct complies with potential definitional elements of
crimes such as robbery.
○​ X shot Z twice when Z attempted to press the panic button, causing Z to fall
and bleed profusely [Scenario]. This act constitutes an unlawful assault.
○​ The post-mortem reveals that the immediate cause of death was the shot
fired by Y which penetrated Z's skull [Scenario]. However, it also confirms that
Z would have died from the initial gunshot wounds inflicted by X had he not
received urgent medical attention within thirty minutes [Scenario].
○​ To determine X's liability for murder, we must consider causation. For X's act
to be a cause of Z's death, it must be both a factual and a legal cause.
○​ Factual Causation: Applying the conditio sine qua non formula, X's initial
shooting was a factual cause of Z's death because if X had not shot Z, Z
would not have been lying on the ground bleeding and vulnerable to Y's
subsequent fatal shot at that particular time. However, the immediate cause of
death, according to the post-mortem, was Y's action.
○​ Legal Causation: Legal causation involves policy considerations to
determine if it is reasonable and fair to regard X's act as the cause of Z's
death. Several theories can aid this determination, including proximate cause
and novus actus interveniens.
○​ Y's subsequent shooting, being the immediate cause of death, could be
argued as a novus actus interveniens (a new intervening act) that breaks the
causal chain initiated by X. However, this is not always the case.
○​ The case of Daniëls is relevant here. In Daniëls, X shot Y twice, leaving him
in a state where he would likely die without medical attention. Z then
appeared and fired a fatal shot. Two judges held that X and Z acted with a
common purpose. The other three judges, assuming they acted
independently, still held that X's act was a cause of death, with two of them
stating that causation in criminal law is not exclusively based on proximate
cause.
○​ Applying Daniëls, even if X and Y did not have a prior common purpose to kill
in this precise manner (with Y firing the final shot), X's initial assault created a
situation where Z was highly likely to die. Y's action then precipitated the
death. It could be argued that X's initial act remained a legal cause of death.
○​ Furthermore, the doctrine of common purpose is highly relevant. If X and Y
had a common purpose to rob the fuel station and foresaw the possibility of
violence, including the killing of Z, then the act of one in furtherance of that
common purpose is imputed to the other. X initiating the robbery with a
firearm suggests a potential for violence. If Y also foresaw that X might shoot
Z, and still participated in the robbery, a common purpose to commit the crime
with the possibility of fatal violence could be established. In that case, Y's act
of firing the fatal shot would be attributed to X, making X liable for murder.
○​ Even without common purpose for the killing itself, X's initial actions were
unlawful and created a life-threatening situation. The fact that Z would have
died from X's wounds without medical intervention within thirty minutes is a
strong indicator that X's conduct was a significant contributing factor to Z's
death.
 ●​ Liability of Y:​

○​ Y entered the shop and, seeing Z lying on the ground, fired another shot at Z
which penetrated his skull, and this was the immediate cause of death
[Scenario].
○​ Y's act satisfies the definitional elements of murder: the unlawful and
intentional causing of the death of another person.
○​ Factual Causation: Y's shot was the direct factual cause of Z's immediate
death according to the post-mortem report; but for Y firing the shot into Z's
skull, Z would not have died at that moment.
○​ Legal Causation: Y's act is clearly the legal cause of death as it directly led
to Z's demise. There is no intervening factor that breaks the chain of
causation between Y's shot and Z's death.
○​ The crucial element for Y's murder liability is intention. By firing a shot that
penetrated Z's skull, it can be inferred that Y intended to kill Z, or at least
foresaw the possibility of death and reconciled himself to that possibility
(dolus eventualis). The fact that Z was already wounded does not negate
Y's intention when he fired the fatal shot.
○​ If a common purpose to rob and potentially kill Z existed between X and Y
from the outset, then Y's intention and act would also be attributed to X, and
vice versa. Even if Y only formed the intention to kill Z upon entering the
shop, his act of shooting and killing Z makes him liable for murder.

In conclusion for the first part, Y is clearly liable for murder as his act was the direct factual
and legal cause of Z's death, and he likely acted with intention (dolus directus or dolus
eventualis). X's liability for murder is more complex and depends on the court's
interpretation of causation in light of Daniëls and whether a common purpose to commit the
robbery with the foresight of potential fatal violence can be established. If a common
purpose with such foresight is proven, X will also be liable for murder based on Y's actions
being imputed to him. Even without common purpose for the killing in that specific manner,
X's initial life-threatening actions could still be considered a legal cause of death.

2. Assume on the facts that Z survived and was taken to hospital. Once admitted Z is
left for two days during which he receives only basic medical care and two days later
dies as a result of infection in his lungs. Discuss the criminal liability of X and Y on a
charge of murder.

In this altered scenario, Z dies in hospital due to an infection in his lungs after receiving only
basic medical care for two days [Scenario].

●​ Liability of X:​

○​ X shot Z twice, creating injuries that necessitated medical treatment

[Scenario]. These initial wounds are a factual cause of Z being in the hospital.
○​ The question now is whether the subsequent infection and alleged
inadequate medical care constitute a novus actus interveniens that breaks the
legal chain of causation between X's actions and Z's death.
 ○​ The case of Tembani is crucial here. In Tembani, 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, generally
leads to liability for an ensuing death, even if the medical treatment later given
is substandard or negligent. The court reasoned that it would be unjust to
allow someone who intentionally inflicted a serious injury to escape
responsibility because of subsequent improper medical care, especially given
the realities of potentially strained medical services.
○​ Applying Tembani, X inflicted gunshot wounds that were serious enough that
Z would have died within thirty minutes without urgent medical attention
[Scenario]. These are intrinsically dangerous wounds. Therefore, even if the
basic medical care contributed to the infection and Z's eventual death, X's
initial act of inflicting those wounds is likely to be considered the legal cause
of death. The court in Tembani even stated obiter that even grossly negligent
medical treatment would likely not break the causal chain, although the
source suggests this view might go too far. Basic or merely inadequate care
would likely fall short of breaking the chain, especially if the initial wounds
were life-threatening.
○​ The Mokgethi case is distinguishable here. Mokgethi dealt with a victim's own
unreasonable failure to follow medical instructions, which led to death. In our
current scenario, the issue is the alleged inadequacy of care provided by a
third party (the hospital), which Tembani addresses.
○​ If X had the intention to kill Z when he shot him (dolus directus or dolus
eventualis), then the fact that death occurred later due to complications
arising from the initial wounds, potentially exacerbated by basic medical care,
would still likely result in a murder conviction for X. Even if the intention was
not to kill, but X foresaw the possibility of death as a result of his unlawful
assault and reconciled himself to it, murder could be the charge. If only
negligence could be proven regarding the death, then a charge of culpable
homicide might be appropriate.
●​ Liability of Y:​

○​ Y entered the shop and fired another shot at Z [Scenario]. Even though Z
initially survived this shot and died later from an infection, Y's act was also a
factual cause of Z's presence in the hospital and his overall weakened
condition.
○​ Applying Tembani, if Y's shot inflicted another intrinsically dangerous wound,
Y could also be held liable for Z's death, even if the immediate cause was
infection following basic care. The principle remains that the deliberate
infliction of a life-threatening wound carries responsibility for the subsequent
death unless a truly independent and unforeseen event intervenes.
○​ If Y also acted with the intention to kill Z (dolus directus or dolus eventualis)
when he fired the second shot, he would likely be liable for murder. His
liability would be based on his own act and intention, independent of X's
actions, although their actions together contributed to Z's demise.
○​ If a common purpose to kill Z existed between X and Y, then the acts of both
in furtherance of that purpose would be attributed to each other, making both
 liable for murder, regardless of which specific wound ultimately led to the fatal
complications.

In conclusion for the second part, both X and Y are likely to be held liable for murder (or
potentially culpable homicide if the required intention for murder cannot be proven). The
principle established in Tembani suggests that the initial infliction of life-threatening wounds
carries the risk of death, even if subsequent medical care is not optimal and complications
such as infection arise. The chain of causation initiated by their unlawful and potentially
intentional acts of shooting Z is unlikely to be broken by the provision of basic medical care,
especially when the initial injuries were so severe that death was probable without urgent
intervention. The key factor will be whether the prosecution can prove the required intention
for murder for both X and Y. If not, culpable homicide would be the alternative charge, as
their negligent (at least) unlawful acts resulted in Z's death.

DO THE PRACTICE QUESTION UNDER CAUSATION

END!!