Vicarious liability - 2nd exception  Element and prerequisite of criminal liability

 Culpability or mens rea

Where employer incurs liability for deeds / acts committed by
 Look at X’s subjective mind at the time of commission of
employees in course of official duties
crime
In order for employer to incur this type of liability, crime must be
 Two theories of fault:
committed within execution of employee’s duties (doesn’t matter if
o Psychological theory of fault – fault seated in the
employer unaware of employee’s actions)
mind of X
o Normative theory of fault – entails assess X”s
Nanabhai case actions based on what is reasonable in
circumstances
General rule is No person incurs vicarious liability unless contrary  SA follows psychological theory of fault
prevails  2 forms of fault:
Accused had 1 employee working at his shop – there was an act that o Intention
prohibited the sale of yeast and employee sold yeast without o Negligence – where reasonable person test applies
employer’s knowledge to prohibited people. Employer was charged ito
this act. Court had to assess whether employer incurs liability for Exceptions to the rule that fault is always required:
crimes committed by employee. Court held employer not guilty as 1. Strict liability
SABC decision 2. Vicarious liability
3. Versari in re illicita
Employee of SABC published photo of prisoner he
was not permitted to do so. Can SABC be held liable? Fault
- Principle of contemporaneity = culpability/fault and
Court held company can be held liable for unlawfulness must exist at same time
employee’s actions even though crime was
committed with negligence
Strict liability – 1st exception
De Blom case
 Liability where fault is dispensed with, only found in statutory crimes.
Frequent travellers, luggage had dollar
 Seldom happens that legislature, when creating a crime expressly stipulates that
notes and jewellery which amounted to
culpability is required – usually silent about it – court must decide whether to
large number needing permit to leave
interpret provision that is or is not required
country. She was charged with contravening
 May be unconstitutional – infringes x’s right to fair trial and to be presumed
travel regulations. Court had to identify
innocent
whether legislature intended strict liability
 General presumption against strict liability
ito these regulations. Court held it was clear
 Statute may use express words such as “intentionally”, “wilfully”, “maliciously”
legislature DID NOT intend to dispense with
etc
fault & there’s a general presumption
 General presumption that parliament didn’t intent to exclude culpability unless
against strict liability unless it clearly
contrary prevails by virtue of language, scope, object, nature and extent of
appears from particular provision that
punishment, reasonableness of holding culpability is not required – legislature
legislature intended to dispense with
can sometimes require negligence as form of culpability
requirement of fault. Claim succeeded for
jewellery but not money as she was a
 NB – dolus indirectus – prohibited result WILL ensue Versari in Re Illicita – 3rd exception

Dolus eventualis – there is possibility that prohibited result  If person engages in unlawful act, he is criminally liable
may ensue for all the consequences which flow from such act,
Kewelram case regardless of whether he acted intentionally or
negligently
Mr K stored goods in storage facility. Took out insurance on these. One  Also referred to as “taint doctrine” – initial act taints
day decided he wanted to set fire to these goods to claim damages from consequences
insurance money – as a result of the fire the whole storage facility burnt  Eg. Hunter who decides to hunt on particular farm
down. He was charged with arson but argued he did not have intention to without permission – he trespasses onto the farm. At
damage whole facility but court held he had direct intention regarding sunset, he aims at an animal and fires a shot only to
storage facility because he knew in order to achieve main aim the storage find later he shot a human.
facility would invertedly also get damaged  According to taint doctrine, by virtue of unlawfully
entering the premises without permission he is liable for
Indirect intention (dolus indirectus) shooting the human being as this is the consequence
that flowed from the initial trespassing
Prohibited act or result is not X’s main aim but he realizes in
 We don’t assess whether he acted intentionally or
order to achieve his main aim, prohibited result will
negligently to begin with – he is guilty by virtue of the
necessarily follow.
fact he acted unlawfully to begin with
Prohibited result will definitely follow/ensue (no question of  Taint doctrine was rejected in Bernardus decision bc it
probability as we know it will definitely happen) Fault infringes constitutional rights and relieved prosecution
(Intention of proving one of the essential elements of criminal
Direct intention (dolus directus) ) liability
 Current position is that the prosecution must still prove
 Person directs will towards
achieving prohibited result
Intention
 Peverett case – Mr P =
unhappily married. Had an  A person commits an act while his will is directed towards the commission of the act or the
affair with Miss E. decided if causing of a result, in the knowledge of the existence of the circumstances mentioned in the
they cant be together they will definitional elements of the relevant crime, and the knowledge in the unlawfulness of the act
be together in death. Both got
into the car and attached hose Two main components of intention:
pipe to exhaust so emissions 1. Cognitive component – knowledge of the act – definitional aspect of crime & its unlawfulness
could go into car and kill them 2. Conative element – will (directing will towards the act)
both. Right after they lost
consciousness someone found Putative grounds of justification do not exclude unlawfulness but excludes fault (specifically
them and rescued them. knowledge of unlawfulness aspect / cognitive component)
Suicide attempt failed and Mr
Three forms of intention: 1. Dolus directus, 2. Dolus indirectus, 3. Dolus eventualis
P charged with attempted
murder due to fact he was the
one who set the whole thing
Pistorius case
Dolus eventualis
Shot Reeva to death. Main defence of accused was putative private defence. This wouldn’t
have succeeded because he was not in real danger at the time he thought he was. Trial court If the prohibited act or result is not his main aim but:
and SCA rejected this.

SCA had to ask whether accused acted with dolus eventualis. Ito murder, persons intention in  He subjectively forsees possibility that in
the form of dolus eventualis arises if perpetrator foresees risk of death occurring but continues order to achieve his main aim, the
to act appreciating that death may occur (gambles with life of person whom act is directed). 2
parts of dolus eventualis – foresight and reconciliation. Although perpetrators intention to kill
prohibited/unlawful result may ensue and;
must relate to person killed this doesn’t mean perp must know or appreciate identity of victim.  Reconciles himself to this possibility
Question is, did accused foresee possibility of killing A PERSON behind the door (not - When it comes to conscious negligence, X doesn’t
specifically Reeva in this case) + reconciles himself with this fact. SCA held if evidence has
indeed been established that accused acted with dolus eventualis when he fired 4 shots. Court
reconcile himself with possibility but instead
unreasonably comes to conclusion outcome will not
Humphrey’s case happen
- Court must draw inferences from the evidence
Conscious negligence – accused
was a bus driver driving kids to
school. Cut in front of traffic as he Beukes case
usually did over railway. On this
particular day as accused did this Beukes and 2 others set out to rob petrol station. Agreed that
the train approached, hitting the 2 of them would wait in car while third member robs the
bus and killing 10 children and shop. Beukes was waiting in car while robbery was happening
injuring 4. Court had to assess and police showed up. Policeman shot and killed. All three
whether accused guilty of murder Fault members committing robbery charged with murder. Did
based on dolus eventualis. beukes have intention in respect of police mans death?

- Trial court – accused guilty -

Court held he was guilty based on dolus eventualis
of murder based on dolus -
By giving member a gun, reasonably foresaw
eventualis possibility that someone could get shot & reconciled
Maritz case
- SCA – took different view himself with this possibility.
asking although he foresaw Accused was police official. Deceased was a suspect suspected of being involved in various
possibility did he really criminal activities. Maritz questioned deceased who was very uncooperative. Maritz attached
reconcile himself to this deceased to his vehicle and instructed him to run alongside the vehicle to teach him a lesson.
possibility? Rope got caught in wheel and accused drove over deceased and caused his death. Accused
o SCA held he did not charged with murder.
have intention to kill - Court had to assess whether Maritz had dolus eventualis (did he forsee possibility of
the children but he deceased dying + reconcile himself with that possibility)
was negligent – - Accused found guilty because had foreseen serious consequences following from his
unreasonably came to actions
conclusion that an - Appeal court – held state had not proven beyond reasonable doubt that he had foreseen
accident will not possibility of death ensuing– on appeal conviction changed to culpable homicide
happen.
o Found guilty of
culpable homicide
Van As case Dolus indeterminatus

Reaffirmed what was held in Sigwahla about subjective - not a separate form of intention but an extension of
foresight & dealt with proof of intention dolus eventualis
- substantiates argument that identity of the victim =
Court distinguished between categories of expert not relevant to establish dolus eventualis
evidence: - only necessary to ask whether accused foresaw he
1. Expert evidence (academic in nature) that is based would kill someone and reconciled himself with this
solely on what has been written on particular Nkombani case
subject
2. Expert evidence ( practical in nature) where expert Chinese man (accused 2) gave Nkombani (accused 1) and
has conducted experiments in particular field – this another man (the deceased) instructions to rob a petrol
type of evidence carries more weight in court station and supplied them with guns. He did not join in on the
robbery. During shooting Nkombani fired shot which killed co-
Hartman case robber. Nkombani and Chinese man charged with murder.
Accused was a medical doctor. Dad was 87 and suffering Court had to assess Chinese man’s intention. He argued he
from cancer. Accused gave his dad an injection to end his lacked intention and had not foreseen possibility co-robber
suffering which resulted in death. Doctor charged with would be shot. Court held that when he supplied the guns
murder. Question was, is this murder even if motive = to and prepared them for the robbery, he foresaw possibility
save dad from further suffering. Court found him guilty of that shots would be fired and people might be injured. Even
Fault though he was unaware of victims identity he still had
murder despite motive.
intention in the form of dolus indeterminatus.

Tests of intention
Sigwahla case
Relates to proof of intention. Accused robbed person of their bicycle. At that point, deceased walked past accused and accused stabbed
deceased 9 times. Accused charged with murder. Court had to assess whether he had intention and whether prosecution proved this
beyond reasonable doubt.
3 NB observations made by court:
1. Expression “intention to kill” = not necessarily require that accused should have applied his will to precise way in which person died –
sufficient if accused subjectively foresaw possibility of his act causing death
2. Ito intention we are not dealing with objective foreseeability (what accused SHOULD have foreseen) but subjective foresight
3. Subjective foresight = proved by means of inferences that court draws from facts and circumstances
Court drew inferences accused had intention to kill deceased from fact accused had a knife and stabbed deceased persistently – test for
intention = purely subjective
Ngubane case 2nd form of fault
the accused got intoxicated. He came across the deceased and stabbed him a few times which  Use reasonable person test
caused the deceased to die. He was charged with culpable homicide (not murder) - The prosecution
argued that the facts revealed that there was sufficient proof of intention - Legal Q: does proof of  Would reasonable person in x’s position have
intention on the set of facts exclude the possibility of negligence? Can intention and negligence be foreseen possibility of certain events transpiring
present on the same set of facts? Proof of intention does NOT exclude the possible existence of
negligence. Therefore, the accused was convicted of culpable homicide. This point caused a lot of
and taken steps to prevent them?
confusion. CLARITY IN THE HUMPHREY’S CASE.  Reasonable person = reasonable foreseeability +
reasonable preventability

LUXURIA / CONSCIOUS NEGLIGENCE – Kramer case

Luxuria refers to situations where X foresees the possibility of a result Surgeon performing tonsil surgery on a girl. During
happening, but X does not reconcile himself with the possibility. operation anaesthesiologist failed to properly place
Instead, X unreasonably comes to the conclusion that it will not
oxygen pipe. Girl died due to lack of oxygen. Doctor and
happen. There is a fine line between dolus eventualis and luxuria, the
difference lies in the 2nd leg of the test (the reconciliation aspect) anaesthesiologist charged with culpable homicide.
Question is, is surgeon also guilty of this? Would
 Dolus eventualis à X reconciles himself with the possibility Fault reasonable surgeon have foreseen possibility of this?
 Luxuria X does not reconcile himself with the possibility
(instead, he unreasonably comes to the conclusion that the Court held it is not surgeons duty to check if
(Negligence)
event will not happen) anaesthesiologist is performing his duty correctly. Thus
surgeon found not guilty.
Human Experience:

 Ito human experience, it is not a requirement that the Burger case

reasonable person foresee the exact causal chain of events
that happened Reasonable person = fictitious person/entity/benchmark used to measure
 All that is required is that the reasonable person in X’s position X’s conduct against and is an objective standard
would have foreseen the general possibility of death ensuring
and would have taken steps to prevent it o e.g.) Humphreys No special qualities and doesn’t have to have extreme intelligence or
case à a reasonable person in Humphrey’s position would prophetic insight or extreme reflexes, just normal common sense
have foreseen that entering a train crossing is dangerous and
would have taken steps to prevent it (would have waited Intention = testing x’s mind at the time of the crime
patiently in line until it was his turn to cross the rail)
Negligence = applying an objective standard to ask if x falls short of this
‘Thin Skull’ cases: standard at the time of the crime
 Thin skull cases are situations where even the reasonable
person in X’s position would not have foreseen the event
turning out the way it did Imperitia Culpae Adnumeratur: - = This is negligence ito which X
o Van As case : - Facts: the deceased was severely undertakes to do a certain task that he is not skilled enough to do - e.g.)
overweight. On the day in question, the accused slapped the X is a general practitioner (GP) but one day he decides to perform heart
overweight man lightly on shoulder. The overweight man lost surgery. Things go wrong and the patient dies. Was X negligent? Yes.
balance and fell on his back and hit his head on ground which
caused his skull to fracture and he eventually died. His Why? Bc he undertook to perform an operation he was not qualified to
weight made the fall more severe. The accused was charged perform
with culpable homicide. - The court had to assess whether a
reasonable person in the accused’s position have foreseen
that a light slap would result in this turn of events? - Court
Swanepoel case  court also distinguished between conscious negligence (luxuria)
 accused was a policeman. He was searching for suspect  dolus eventualis, where we deal with X’s state of mind (foresight) + his
who drove a white car. On the day in question, the reconciliation
policeman was driving and stopped at an intersection. A  Conscious negligence is also dealing with foresight, but reconciliation is
white car stopped next to him and looked a lot like the absent
suspect.
 The policeman thought it was the suspect so he fired a Humpfreys case: - Facts: the accused drove a school bus across the train tracks
shot. It turned out the person who was shot was not the
bc he didn’t want to sit in traffic. He did this many times and it always worked but
suspect.
 The policeman was charged with murder. this time the train hit the bus and 10 children died. - Trial court: o Accused was
 Court held that mistake about identity is not a defence charged with murder o Trial court accepted the argument that the accused
 accused also relied on the provisions of sec 49 of CPA foresaw what would happen if he crossed the train tracks and reconciled himself
with this possibility. - Appeal court: o On appeal it was held that the prosecution
Abberratio ictus had not proved intention beyond reasonable doubt. Proving such intention would
- Missing the blow have entailed that the accused didn’t only have foresight into killing the children
- Eg. X wants to shoot a bird but the bullet ricochets off but also killing himself. From the facts it’s clear that his intention was not to kill
a tree and hits a person – how do we assess criminal himself (since he crossed the tracks so many times in the past). Therefore, the
liability? accused was negligent. He unreasonably came to the conclusion that the train
- Eg. X wants to shoot Y but bullet ricochets and hits Z
instead – do we transfer X’s intention to Z or assess Excuses
based on general principle of criminal liability?  Mistake or error
- We assess based on general principle of criminal Fault  Defence x would raise if he was mistaken as to one of
liability
- Therefore, X will always be guilty of attempted murder
the elements of the crime
(Negligenc
in respect of Y – if foresaw possibility bullet might  Eg. x goes on a hunting trip and mistakenly shoots a
e)
ricochet and reconciled himself with this possibility – human believing it is an animal = mistake of fact
will be guilty of murder based on dolus eventualis  X’s accidentally shoots her husband as he is coming in
- If unreasonably rejected possibility = culpable through the window believing it is a burglar = X is
homicide based on conscious negligence mistaken to the unlawfulness of his act
- If reasonable person would’ve foreseen possibility but  When will mistake be defence? – only if the mistake was
x didn’t = culpable homicide based on normal a material one
negligence o when is mistake material? – when it relates to one
Mbombela case of the elements of a crime
o test is also subjective – we look at what happened
Accused lived in a hut with his family. Came back at night and saw feet
in x’s mind and whether he subjectively believed
sticking out of the hut. In his culture belief was that this = indicative of
that certain facts existed
an evil spirit being present in the house. He hit it with a stick and killed it
 error in persona = x is mistaken about the identity of
only to later find out it was his nephew. Accused charged with murder.
the victim
Court asked can cultural belief exclude knowledge of unlawfulness? – o error in persona = NOT material mistake
lecturer says yes. Court convicted him of culpable homicide not murder &
held mistake about identity is not a material mistake.
Goosen case 2 approaches to determine x’s criminal liability
Mistake about causal chain of events can be defence if there was substantial 1. Transferred intent approach = previous approach
deviation in how events took their course. Robbers intending to commit robbery. a. X’s intention in respect of Y = merely
Forced car to pull over. While standing outside car it began rolling and G’s co- transferred to Z
robber got a fright and shot his firearm. Shot killed the person in other vehicle. All b. Argued that X had the intention to fire a shot
charged with murder. G’s defence was although he had foreseen possibility and kill a human being – intent is merely
someone could get shot and reconciled with this, had not foreseen possibility that transferred
this might happen by means of involuntary shot being fired by one of his co- 2. Concrete approach = correct approach currently
robbers. = substantial deviation from how he envisioned events would pan out. followed in SA
Court accepted his defence and charged him with culpable homicide. Held, a a. X’s intent cannot merely be transferred to Z
mistake ito the causal chain of events can be defence if there is a substantial b. X’s criminal liability must be assessed based on
deviation in how events actually transpired.
Mistake as to Causal Chain of events Hedley case

Rarely features in our courts - Overlap with the element of  Accused wanted to shoot bird at the dam. Fired at
causation - e.g.) X and Y break into Z’s home to rob the home, water level, bullet ricocheted and hit a girl. He was
they find Z inside and strangle Z and throw him in the charged with murder. Court held, there was no
swimming pool. At the moment they strangle him, they believe intention of H’s part but he was negligent. He foresaw
in their minds that Z is already dead (they believe they are possibility that bullet might ricochet and unreasonably
throwing his corpse into the swimming pool). Post-mortem came to conclusion that it wouldn’t happen.
Fault  Found guilty of culpable homicide
reveals Z died as a result of drowning - Can X and Y raise as a
defence that the causal chain of the events differed in such a
manner that they lacked intention (ie: the causal chain of the Ignorance / mistake of law
Raisa case
events they envisioned for themselves differed from the way it  X = mistaken as to unlawfulness of his actions
panned out) - Courts are reluctant to accept this defence  Pregnant female who had
 X subjectively believes he is acting in
other child with her (a young
accordance with ground of justification
Masilela case baby). Accused wanted to
 De Blom case – jewellery and money
stab complainant with a knife
 Longdistance case – company charged ito
- M and his co-robbers entered the farm of the deceased → and she held her baby in
certain act for contravening provision of the
broke into his house and strangled the deceased with a tie. front of her to protect herself.
act for transporting bags of sugar that
Thinking that he was already dead, they threw him on his bed Accused then stabbed the
exceeds amount they were permitted to
and set the house on fire after robbing the house - When baby.
transport.
 Was accused guilty of assault
deceased was found and post-mortem was performed on him →  Their defence = legal advice they were
with intent to do grievous
it transpired that he did not die of strangulation → he died as given informed them they were within their
bodily harm in respect of the
result of carbon monoxide poisoning as result of fire. They were rights but this was blatantly wrong.
baby?
charged with murder - Defence: their intention was not to kill  Court held – when youre in a field of
 Assault is an intent crime and
specialization there is a legal duty to
the deceased by carbon monoxide poisoning à there was a cannot be held to be
acquaint yourself with legal provision
mistake regarding how the causal chain of events transpired - negligent
pertaining to your field – cannot merely
Court held: court rejected their defence and held that they  Court held NOT guilty of
raise defence that you didn’t know
foresaw the possibility that the deceased might die and grievous bodily harm in
 Court rejected their defence and held
reconciled themselves with it. They believed that he was dead respect of the baby – he did
they should’ve gathered a different
NOT foresee that the mother
at the time they strangled him → there was clearly an intention opinion / suspicion should’ve been
would use baby as protection
to kill. - The fact that the death ensued in a different manner aroused as to the legal advice they
and that he would stab the
from what they envisioned, should not afford them a defence. received as it was so blatantly wrong I
baby and reconciled himself