Criminal Law Prescribed Cases

Punishment Theories1. S v Tabethe; DPP v Tabethe 2011Conduct2. Minister van Polisie v Ewels 1975Causation3. Minister of Police v Skosana 19774. S v Danils en n Ander 1983 (A)5. S v Mokgethi en andere 19906. S v Tembani 2007 (SCA)Unlawfulness7. S v Engelbrecht 2005 8. Ex Parte die Minister van Justisie: In re S v Van Wyk 1967 (A)9. S v Goliath 1972 (A)10. S v mostert 200611. S v W en n AnderCriminal capacity12. S v Chretien 198113. S v Eadie 2002Fault: intention 14. S v Goosen 198915. S v De Blom 16. S v Ngubane 17. S v Joshua 2003 (SCA)18. S v Naidoo 1993Fault: Negligence 19. S v Van der Mescht 196220. S v Van As 1976Participation in crime: common purpose21. S v Safatsa and Others 1988 (A)22. S v Lungile and Another 199923. S v Mzwempi 2011 Participation in crime: accomplice 24. S v Williams en n Ander 1980incomplete crimes25. R v Schoombie 194526. R v Hlatwayo 1933 27. R v Davies 1956 (A)

Punishment theories: restorative justice

DDP v Tabethe 2011 (2) SACR 567 (SCA)

Appellant: Director of Public Prosecutions Respondent: TabetheFacts: Tabethe raped his life companions fifteen year old daughter Daughter had forgiven him, and required that he remain out of prison to support her and her family Court a quo found this case to be a good opportunity for restorative justice DDP appealed the case on the grounds that the seriousness of the crime was undermined and the minimum sentence for statutory rape, 10 years imprisonment, was forgoneLegal question: Could restorative justice be fair and just when used in serious cases of rape such as this one?Ratio Decidendi: Tabethe abused his position of power and trust in the household and has grossly violated the basic human rights of the child Child was suffering mentally and emotionally, so much so that her school work was affected The minimum sentence of 10 years imprisonment for rape, as found in the Criminal Law Amendment Act 105 of 1997 should be upheld The seriousness of the crime requires the punishment to be fitting to satisfy the interests of the community Judge in the court a quo focused too much on what the victim wanted Restorative justice does not have a place in more serious crimes such as rape and murderJudgment: The appeal is upheld and Tabethes previous punishments are set aside and replaced with 10 years imprisonment.

Conduct: legal duty to act Minister van Polisie v Ewels 1975

Appellant: Minister of PoliceRespondent: Ewels (victim)

Legal facts Ewels was assaulted by off-duty police officer at station in front of other officers at the station (some superiors) that did nothing to prevent the assault Minister to be held liable as policemen have a legal duty to protect citizensLegal question Is there a legal duty on police officers to act positively to prevent harm?Ratio POD: no liability for omissions, even if it is easy to prevent harm But are cases for exceptions: where there is a legal duty to act positively arising from a protective relationship (this case = first time courts recognised a legal duty to protect!) Development: moral duty legal duty depends on convictions of the community 3 reasons for legal duty:1. Protective relationship i.e. policeman and citizens 2. Arise from office i.e. policeman - officers were present and able to stop the assault3. Legalisation: S 5 of Police Act the duty of the police is to protect the community and prevent crimes from being committed Decision Appeal dismissed Therefore, there is a positive legal duty on policemen Minister liable for damages

Causation: factual causation

Minister of Police v Skosana 1977

Legal facts Skosana caused a motor vehicle accident while he was intoxicated The passengers in his vehicle were taken to hospital and Skosana taken to jail and placed in a holding cell He complained of chest pains but the police could not find evidence that he was hurt so left him in the holding cell In the morning Skosana was still complaining of stomach ache The police eventually called a doctor (2hrs after opened cell), doctor said he has internal injuries and that he needed to go to hospital There was more delays in transporting him to hospital During the operation Skosana died Legal question Did Davel and Mahela (police officers) act negligently towards the deceased? Would, on a balance of probabilities, Skosana have lived but for the unreasonable conduct (negligent conduct) of Davel and Mahela?Ratio Factual causation: Conditio sine qua non test: but for the policemens negligence, would Timothy have died?This depends on the severity of the wounds and whether or not Timothys going in for the operation earlier would have increased his chance of survival The court found that there was also a special relationship between prisoners and the police in that the police have a responsibility towards prisoners to attend to their medical needs as they are not free agents to seek and obtain own medical attention Legal causation: The delay was the abnormal event (novus actus intervenis) as that is not in the normal course of their job descriptions and therefore made the delay the cause of the death. Adequate cause test: in the course of normal human events, would Timothy have died without the delay? Depends on the severity of the internal bleeding, but we can assume with timely medical assistance his chances of surviving were higher. Proximate cause test: what is the main cause of Timothys death? The peritonitis caused from infection from not being treated fast enough. Judgement Appeal was dismissed Majority of the judges found that earlier medical treatment could have saved his life Significant connection between negligent conduct (slow/delayed) and death of Skosana Constables failed to act reasonably Minority judgement held that Skosana had sustained serious injuries so medical treatment would not have helped Not sufficient to create a link, he would have died regardless

Causation: legal causation

S v Mokgethi en andere 1990

Legal facts Robbery in bank and teller (Moloto) shot paraplegic Given medical advice: move around in wheelchair otherwise will develop pressure sores He failed to move (evidence of depression) and developed pressure sores then sores became sceptic, doctors unable to help him and he died 6 months after the initial shooting Legal question Could the robber be held liable for the death of Moloto or did he die due to his own negligence?Ratio decidendi

Court a quo: Robbers held liable for murderAppeal Was there sufficient connection between Molotos death and the shooting?Factual causation But for the shooting at the bank, would Moloto have died? Court: no he would not have been in a wheel chair and would not have developed pressure soresLegal causation: took into account more than one test Individualisation test: the gunshot wound was no longer potentially fatal, therefore the decisive cause of his death were the pressure sores Adequate cause test: would somebody normally die due to a gunshot wound to the back? Not really, depending on the case Novus actus interveniens: Abnormal behavior? Moloto did not move himself to avoid the pressure sores unreasonable to not move therefore abnormal NO legal causation

Decisions There is not a close enough link before the factual and legal cause and therefore the respondents were found guilty of attempted murder, not murder itself.

Causation: legal causation

S v Tembani 2007 (1) SACR 355 (SCA)

Facts: The victim was shot twice by the appellant (her boyfriend) and was taken to the hospital There she received negligent care and has a result contracted septicaemia and died shortly after The appellant received 18 years imprisonment on a charge of murder, but claims that the hospital and its negligent care is the liable party. In the trial case, the medical treatment was not found to be so overwhelming that it ruptured the link between the shooting and her death. Doctors were slow to treat her, but the overall cause of her death was the gunshot woundLegal question: Can the negligence of the hospital staff be held liable for the cause of Thandis death over the initially inflicted gunshot wound?Ratio Decidendi: The accused had the intention of grievously harming the victim The hospital cannot be seen as liable as the negligence was not out of the ordinary The victims come as they are, meaning the accused chose this victim and whether she went to a hospital of top quality care or a negligent one, his shot is still the deciding factor Conditio sine qua non test: but for the negligence at the hospital, would the victim still have died? Most likely as she had severe injuries from the bulletsJudgment: Appeal is dismissed, the negligence of the hospital is not found to be grossly negligent and therefore cannot be seen as breaking the causal link between the shooting and the death, also the negligence at the hospital does not make the appellant any less guilty for his deliberate infliction of the wounds.

causation: legal causation

S v Danils en n Ander 1983 (3) SA 275 (A)

Ignore part of the judgement dealing with S 115 of Criminal Procedure Act

Legal facts Two brothers A Danils and S Danils were joined by a 3rd man in a taxi from Grabouw to Botrivier Taxi driver = Jacobs At Swartrivier the taxi was told to stop by A. A. Danils and Jacobs got out and fought. AD produced a gun, Jacobs began to run and AD shot him in the back twice Jacobs fell but was still alive would die if he did not receive medical treatment within 30 minutes unlikely in the circumstances A while later a 3rd shot was fired and Jacobs was shot in the head and killed Post mortem: cause of Ys death was the bullet to the ear so who is liable?

Legal question Who is liable for murder? How it is possible to determine who fired the fatal shot with regards to the different forms of causation? Is there a factual and legal link to the taxi drivers eventual death?Ratio Factual link: Conditio sine qua non would he have died but for the wound to his head? Yes, the wounds in his back made him a sitting duck and therefore there was a link between his death and the shots to the back and head Legal link: all 5 judges had different opinions on the form of the legal link Judge Nicholas & Botha: Found both brothers guilty based on the doctrine of common purpose (the conduct of the one is imputed to the other) do not need to prove causation Criticism: facts do not support this no proof that they worked together Tengrove: Not sure the back wounds would have caused his death but applied the novus actus interveniens test was used to identify the head wound as the aim cause of death head wound not connected to back wound (breaks chain of causation) = abnormal, therefore Samuel will be liable for attempted murder Criticism: contradiction? Incorrect facts, conclusion? Jansen & Van Winsen: Did not know who shot fatal shot but applied adequate cause and looked at context Swartpad is far away from medical aid he would have died regardless (according to expert) Therefore, A Danils is the adequate cause of death Reason for legal causation: to limit liability within reasonable boundaries in line with policy considerations No policy considerations to find that accused 1 should not be liableDecision Andries Danils was held liable for murder (4/5 judges agreeing) where as 2/5 judges found Samuel liable thus he is liable for attempted murder

Unlawfulness: private defence

S v Engelbrecht 2005 (2) SACR 41 (W)

Facts Wife was abused by husband for years and could not take it anymore She bought thumb cuffs and cuffed her husbands hands behind his head one night when he was sleeping She then tied a plastic bag around his head and proceeded to suffocate him Her husband died from her actionsLegal Question Can family violence be an excuse to ignore the requirement of an attack being commenced or imminent? Can the fact that Mrs Engelbrecht would definitely have been abused by her husband again in the future be a reason to justify her actions as private defence?Ratio Decidendi Mr Engelbrecht had been severely abusing his wife for a very long time, and had he lived he would have continued to do so. The attack did not fit the private law requirement of being imminent but due to the fact that Mrs Engelbrecht had been enduring years of abuse and it was very likely to happen again private defence can be used for a cycle of abuse Her defence must be reasonable, necessary and against an unlawful attacker Private defence must be a last resort but there is not absolute duty to flee Forfeited right to self-defence when she chose not to leave abusive relationship = taking law into her own hands is not permitted It was usually accepted that if the accused could have averted the attack by resorting to conduct which was less harmful than that actually employed by her, and if she inflicted injury or harm to the attacker which was unnecessary to overcome the threat, her conduct did not comply with this requirement for private defence. Accused had not afforded the legal system, the South African Police Service and society a fair chance of helping her - it had not been objectively reasonable in all the circumstances for the accused to kill the deceased when she did. Mrs Engelbrecht had planned the deceased death it was premeditatedJudgment: Majority decision of the Court is that Mrs Engelbrecht did not meet the standards required of the reasonable woman in her position. Therefore she was found guilty of the charge of murder of her husband.

Unlawfulness: private defence

Ex Parte die Minister van Justisie: In re S v Van Wyk 1967 (A)

Legal facts: Van Wyk was a shop owner who was continually robbed He had tried many methods to protect his shop (night guard, watchdog, extra security measures) but none had been successful The police had said there was nothing they could really assist him with In a desperate attempt to protect his shop from yet another robbery, Van Wyk set up a shotgun trap (with the knowledge of the police) which would fire at and intruder who attempted to climb in through the window of his shop The shot would be aimed at the robbers upper leg the intention was not to fatally wound him A man did try to climb through the window and the trap released a shot into his leg, from which he bled to deathLegal Question: Can you kill somebody in private defence to protect your immovable/movable property?Ratio Decidendi: The shotgun trap is dangerous it cannot tell who is attempting to climb in and could injure and innocent third party There must be sufficient warning for this trap to be allowed with private defence Mr Van Wyk states that he had put up a written warning in English and Afrikaans J Rumpff believes that this is not sufficient: a robber might not be able to understand these languages, and the written warning was not enough (due to the seriousness of this trap) Van Wyk used private defence as a ground of justification and was discharged as such the Minister of Justice then questioned whether this defence could stand The State had not proved that there was a less dangerous yet effective means which he could reasonably have adopted to protect his property, and the possibility that the deceased actually knew of the notice was not rebutted and was a reasonable possibility which could not be rejected Judgment: Private defence can be used for cases such as this (in respect of protecting ones property with a lethal weapon) but it is not successful in this case due to the written sign being insufficient warning to a would-be robber.

Unlawfulness: necessity

S v Goliath 1972 (A)

Legal facts: Goliath and friend came across a man on the side of the street when walking through Knysna one day The friend demanded the man give him a cigarette, and when the man stated he had none, friend demands the man hand over his money. The man said no, and the friend takes out a knife and stabs the man The friend tells Goliath to help him finish the man off hold him still while the friend stabs him continually until he dies Goliath is hesitant to help him, and the friend threatens to kill Goliath if he does not help him by holding the man down Goliath holds the man down and when he is dead he helps his friend move the body The friend is charged and found guilty of murder what about Goliath?Legal question: Can necessity be used in an instance when one person takes the life of another to preserve his or her own life? Whose life is more valued?

Ratio Decidendi:

Court a quo acquitted Goliath Felt there was sufficient evidence to comply with necessity as a ground of justificationAppellant division (Rumpff) Goliath could not run away or escape his menacing friend and he was forced to decide between his own life and that of the man The court made reference made to R v Dudley and Stephens and found that it is human to regard ones own life above that of an innocent third party J Rumpff: cannot expect people to act as heroes by sacrificing themselves, it is not fair to expect them to act beyond what is human Cannot expect more than normal/average person Even the most morally upright person would regard their life as more important than another Per definition: a person willing to sacrifice their life over another = hero (not the average person) Therefore, do not set a standard higher than normal person Be careful in evaluating this defence No evidence that he could have run away (fled), younger than other guy influence Judgment: Due to the fact that Goliath had no other option but to help or risk his own life, and that it is human nature to value ones own life above the life of an innocent third party, the defence of necessity was allowed and the appeal dismissed Court a quo judgment upheldMinority judgement: J Wessels whether possible to exclude fault as a requirement Excludes unlawfulness or fault? Fault Objectively speaking: cannot say his life is more valuable than other person If apply requirement of proportionality then requirement is NOT met because interests/values are same BUT Wessels willing to give defence: willing to exclude requirement of fault He did not act with fault can be acquitted on this basis

Unlawfulness: public office

S v Mostert 2006 (1) SACR 560 (N)

Legal facts Mostert was a traffic cop, instructed to bring a colleague, who had disgraced the Municipal Protection Services in Newcastle, to the headquarters Instructed to do so by his superior, Mr Rothman His colleague (the complainant) refused to go to the headquarters with Mostert, and after checking with his superior again, Mostert had to resort to using force to bring him in, bruising his neck, chest and abdomen superficially Court a quo had not found Mosterts defence of obedience to superior orders to be successful and convicted him of assault and crimen injuria (with regard to the racial slur = intention infringement on right to dignity)Legal question Can the defence of obedience to superior orders be successful when the accused used force that was not issued but would not be outside the line of duty in order to carry out the order?Ratio Decidendi Three requirements for defence to be successful:1. The order must emanate from a person lawfully placed in authority over the appellant. 2. The appellant must have been under a duty to obey the given order. 3. The appellant must have done no more harm than was necessary to carry out the order. First two requirements are fulfilled Mr Rothman is legally a superior to Mostert, and it is within Mosterts line of work to have received that order Appellant (Mostert) admits his force was not authorized Superior orders is usually a defence for military persons, but the Court held it is allowed to be extended to traffic cops When Mr Rothman gave Mostert the order again, he inferred that in any way possible (including necessary force) Mostert must bring his colleague to the headquarters not a reasonable inference Court could not prove that Mostert had the intent to assault his collegueJudgment: Appeal upheld for conviction of assault defence of superior order granted. But, appeal against charge of crimen injuria was dismissed.

Unlawfulness: consent

S v W en n Ander

Parties Complainants: two girls aged 13 at the time, another ages 9 at the time Defendants: Husband and wife (wife was a Sunday school teacher)Legal facts Man and wife lured young girls between the age of 9 and 13 into their home, and told them that they could not have children of their own, and that if the girls slept with the husband, they would be cured of their infertility. Girls accused the defendant of rape as man and woman had been fraudulent and therefore they had not given consent (not real, informed or voluntary) Defendants claim that the girls had consented to the sex; they knew what was being asked of them and had gone along willingly.Legal Question Can the girls willingness be considered consent when the purpose of the sexual intercourse had been misrepresented, even though the nature of the act was fully communicated?Ratio Decidendi

Court a quo Dismissed their defence of consent and convicted the defendants on 3 charges of rape and accomplice to rape.Appeal Any girl who has sex, consenting or not, who is under the age of 12 will be considered to have been raped. Therefore the charge of rape in terms of the 9 year old girl succeeded. The two girls aged 13 cannot claim to be fully ignorant at their age But both of girls were under the legal age of consenting (age 16), and therefore the accused were guilty of contravening s 14(1)(a) of the Sexual Offences Act 23 of 1957. Although the man and wife lied about the sexual intercourse curing their infertility, they did not hide any aspects that were expected of the girls therefore they were fully informed about the nature of the actJudgment The appellants were charged of statutory rape on those two counts. Both appellants will serve 15 years imprisonment for the charges of rape, statutory rape, and accomplice to each charge.

Element of the crime: criminal capacity

S v Chretien 1981

Legal facts Accused was at a party & drank a lot Chretien decided he wanted to leave got into car to drive off (under the influence) He saw that people were standing in the road, but he was convinced they would move out of the way. But they didnt 1 dead, 5 injured Charged: murder & attempted murder He argued that he lacked intent court accepted evidence acquittedLegal question Can intoxicated accused be held liable for assault (which requires intent) on a charge of attempted murder?Ratio

Court a quo Judge said he was bound by Johnson-case Court found him guilty of culpable homicide but acquitted him of attempted murder & common assault

Appellate division: Court decision (Judge Rumpff)

Legal principles Common assault requires an intention to assault if intention is lacking due to voluntary intoxication, then Chretein cannot be convicted on this charge Intoxication may influence criminal liability in exactly the same way as youth, insanity, etc. Criminal liability depends on degree of intoxication: may exclude voluntary conduct, criminal capacity or intent or be a mitigating factor at sentencing Involuntary intoxication - If you commit a crime in an intoxicated state you wont be held liable for the consequences. Actio in libera causa - Held criminally liable when you drink in order to gain the courage to commit an act.Applied to facts Chretien said he wasn't able to form the intention to harm the people. He never argued that he lacked criminal capacity, only intention to kill anybody. Judge Rumpff said that if you cannot form intention then you cannot be found guilty of a crime requiring it, therefore Chretien could not be found guilty of common assault [Judge confirmed the court a quos findings] Intoxication can affect your mental abilities It depends on degree of intoxication: Chretien was acquitted due to a lack of fault (intention), not due to lack of criminal capacity Rumpff argues that if missing an element of the crime, due to intoxication, it is easier to accept than just following policy considerations Must consider all the relevant evidence and degree of intoxication in deciding if successful defence or not This defence is difficult to raise: requires a large amount of evidence The judge rejected the distinction between general and specific intent - intention is intention. The distinction no longer forms part of SA law

Judgement Accused was acquitted based on defence of lack of intent Appeal is dismissed

Criminal capacity: provocation

S v Eadie 2002 (SCA)

Facts Driving under the influence Eadie kept getting irritated by care behind him e.g. flashing lights, overtaking several times Eadie stopped the car and confronted him - hit him with a hockey stick Wife had driven away when they stopped, came to pick him up again Eadie went back to scene, got rid of hockey stick; showed the police a different pair of jeans to the bloody pair he had on, but was caught out by a witness Defence: lacked conative capacity (non-pathological criminal incapacity)

Legal question Is the defence of provocation relevant today? Does road rage, as a form of lack of conative capacity, have any standing in SA law?Ratio SCA confirmed court a quo decision Eadie acted in purposeful, goal-driven manner not loss of control, loss of temper NOT succeed with defence of non-pathological criminal incapacity

Judge Navsas judgement The complete defence of non-pathological criminal incapacity due to provocation/emotional stress resulting in a (subjective) lack of conative capacityDefence retained? Judges should not just allow this defence must approach defence with extreme caution Cannot just believe what somebody says about their state of mind expert evidence is important [cannot just believe accused ipsi dixit] Take into account: what did before and after incident help figure out state of mind Eadie: hid incriminating evidence, took hockey stick etc. Reject ipsi dixet. Infer from surrounding circumstances that could subjective control himself State of mind Human experience Social norms Social interactions Use policy considerations rather than legal principles Court found that he knew what he wanted to do lost temper and not the ability to control himself

Done away with? Because it overlaps completely with the objectively-determined defence of sane automatism

Doesnt like defence [para 61] but should do away with defence? Or maintain for deserving cases.

Contrasting view of Burchell & Snyman

BurchellSnyman

Judge N would gave wanted to change defence Is of the view that the subjective test for establishing conative capacity ought to have an objective dimension that determines whether accused could reasonably be expected to have acted differently in the circumstances Rejects: lenient approach Rejects: unyielding approachSuggests going back to view transkeian penal code approach-ish (find guilty of lesser crime)The defence of provocation in favour of a middle ground which views provocation as a partial defence

Element of the crime: fault

S v Goosen 1989

Legal facts Accused was part of a gang The gang planned to rob an old man. They waited until the old man came out from his building and got into his car they followed him, stopped him and confronted him. One robber had semi-automatic weapon and others hit him The old mans car rolled forwards and gun went off accidentally and killed the old man. The accused is the man holding the gun, Mazibuko, who claimed that he had pulled the trigger by accident or involuntarily All of the members of the gang were charged with murder & robbery (common purpose) Goosen had bad legal advisor, told him to plead guilty followed advice tried separately from other robbers Other 3 gang members were acquitted of all charges Legal question Can Goosen be held responsible for the death of the deceased when the manner in which the deceased died was not foreseen i.e. it differed markedly from the manner in which the accused foresaw?Ratio (appeal) Cases of common purpose: state does not need to prove causation Goosen could not use defence of novus actus intervenius Common purpose: Active participation in common purpose + requisite guilty mind (doesnt matter that did not contribute casually to unlawful consequence) Not required that there is causation between their association and unlawful consequence Did it matter that the death occurred in a substantially/markedly different way to which Goosen foresaw? He had foreseen the possibility that one of his fellow robbers might intentionally shoot the deceased killing him Court used inferential reasoning (subjective test): took into account the strange way death occurred, Goosen was poorly educated (Gr8) = he did not foresee manner in which death occurred Court: Because death occurred in a way that was not foreseen not proved dolis eventualis must have been substantially the same manner in which the accused foresaw correlation between foreseen way + actual way HOWEVER, court uses culpa to convict a reasonable man in this situation would have foreseen the possibility of the prohibited consequence & taken steps to prevent it Accused did not meet the standard of a reasonable man Judgement Intent element is not satisfied if (foreseen) consequence occurs in a way which differs markedly from the way in which the accused foresaw the causal sequence Appellant was not found guilty of murder but guilty of culpable homicide [6 years imprisonment]

Ignorance of the lawS v De Blom 1977

Legal facts A wealthy Argentinean woman was living in South Africa and wanted to fly home to visit her family She was flying from Cape Town Airport but the police were tipped-off and stopped her and found $40 000 cash and a case of valuable jewellery (hidden in lining of bag) in her luggage Both money & jewellery more than allowed amount to take out of country [contravene Currency and Exchange Act 9 and Exchange Control Regulation] Defence: accused didnt know it was a crime (ignorance of the law)Legal question Can ignorance of the law be a defence in South Africa?Judgement (appeal): Judge Rumpff!

Rumpff: clich to say that everyone is presumed to know the law in SA The court must consider whether she acted intentional (mens rea) Can infer from facts whether she subjectively had knowledge of the law or whether she was using it as an excuse to escape liability Court looked at the circumstances & facts of case: accused is wealthy, she had taken that amount of jewellery out of the country before Money She has intent She knew about money & finances not feeble woman was wealthy and managed her own affairs It was clear she tried to hide the money away in lining which the court can infer meant that she knew it was a crime The court found that there was a plot between her and her husband to take money out of country Jewellery Court could infer that it is reasonably possible that she really didnt think she needed permission to take jewellery = lacked intent as she was truly ignorant She wore more jewellery than average South African & had removed this jewellery from RSA many times before and thought it was allowed Even if culpa (negligence) is sufficient form of mens rea in the present offence, the state failed to prove the required mens rea beyond reasonable doubt

Intent: putative ground of justification

S v Joshua 2003 (SCA)

Legal facts Joshua and his family lived in Delft. His wife was robbed after which she phoned Joshua & told him about her attackers described them to him. Joshua wanted to find robbers he and a friend went to look for them with a fully loaded shotgun Saw group 5 youths (14-17 years) and knew that they were members of the Hard Livings gang and the one boy met the description of the robber, Malin. Joshua approached gang members and asked that they give purse bag. Malin refused. Joshua then shot and killed Malin, Fabian and Mervin. He also shot Ivan. Ettian ran away but Joshua ran after him. Ettian ran into Hassans house, peaceful house, Joshua killed Hassan, Jacobs & the dog. Legal question Is Joshua guilty of murder and attempted murder?Ratio 1st situation: Malin: he broke bottle, sworn at Joshua and begun approaching him. Malin was a gangsta. The courts allowed Joshua to succeed with private defence, as he could not run away. Fabian & Mervin: Both were shot from the side. Court found that they were not advancing towards Joshua but they were still so close to Joshua that he could have believed that they were a danger. Joshua guilty of culpable homicide. [If really thought he was in danger putative PD]. Ivan: no intention = no crime. But there is no such thing as putative negligent murder. Therefore, acquitted of crime. 2nd situation No defence for killing people in house Guilty of murder on all counts

Intent: putative ground of justification

S v Naidoo 1997

Legal facts A young man and his wife & child were in their family home He heard noise at the gate and called out but received no response. The family had many attempted robbery and were frightened He had gun with him and fired 1 shot The person at the gate was Naidoos father whom he had shot and killedRatio He foreseen the possibility of shooting somebody the gun was at shoulder height. Important that he had no reason to kill dad did not intend to kill him Have defence? Private defence? No, there was no unlawful attack thus the requirements were not met An accused can only be guilty of murder where there was a consciousness of wrongfulness (knew acted unlawfully). Naidoo genuinely thought he was entitled to shoot because he subjectively thought he was in danger Factors taken into account: he was young, previous burglaries, genuine belief that person outside, dangerous neighbourhood, only man in the house want to protect his family, he would not have shot if known it was dad. The courts found that the accused did not have dolus (consciousness of wrongfulness) Negligence? Court found that objectively, a reasonable person wouldnt have fired but rather have taken other steps before shooting such as firing a warning shot, raised an alarm, closed the door. The accused had options available to him. The court found that Naidoos shot was premature and excessive he did not act reasonably Judgement Guilty of culpable homicide

NegligenceS v Ngubane 1985 (3) SA 677 (A)

Legal facts Appellant was intoxicated, got into an argument with a woman and stabbed her 5 times. It was established that the appellant was not excessively drunk and still control of his faculties to a degree. During trial court proceedings, prosecutor is willing to accept a guilty plea of culpable homicide from the accused, to which the accused agrees. The court hears evidence and decides that the accused does have the necessary intention (dolus eventualis) and convicts the accused of murder instead of culpable homicide. Appeals whether this decision is fair and whether or not culpa and dolus can be substituted for each other.Legal Question Was it within the Courts power to change the plea, which the accused and prosecutor had both already agreed to? Can dolus and culpa be interchange-able and do they overlap?Ratio decidendi Judge looks at difference between intent and negligence and comes to the conclusion that the two are completely different and cannot be substituted for the other Dolus is a volitional state of mind Culpa is not meeting a specific standard Facts of case illustrate the difference: appellant had no premeditation, some provocation, liquor, stabbed woman. He killed intentionally and foresaw consequence (dolus) View from different angle: the appellant failing to curb his emotions falls short of test for reasonable man (who would have not done this) = negligently. On this approach dolus does not exclude culpa. Stabbing someone = dolus eventualis is clear The fact that he did not stop shows he does not comply with the test for the reasonable man either = culpa is also valid Snyman completely disagrees = says its a procedural problem and therefore requires a procedural solution.Judgment Found guilty of culpable homicide and given a sentence of 7 years 95 would be too lenient for this situation)

Doctrine of strict liability should not be applied in our law

S v Van der Mescht 1962

Legal facts Accused was a miner who was not receiving enough income to sustain himself and his family. Sold an amalgam with contained gold and him and a friend decided to smelt the amalgam (which contained mercury) to get the gold substance. He boiled the amalgam in a steel pot in his kitchen and the substance released a poisonous gas which killed 4 children and his friend Appellant was charged with culpable homicide for his negligence as well as owing to the fact that he had been committed an unlawful act (and therefore could not escape liability)Legal Question Did the appellant act in accordance with the reasonable man with regard to his lack of foresight into the effects of a relatively unknown substance? Can an accused be charged based on the facts that he had been committing an unlawful act only?

Ratio Decidendi The appellants actions need to be measured against that of the reasonable man. A reasonable man could not have been expected to know or foresee the possibility of the amalgam emitting such a severe degree of poisonous gas. And therefore could not have been expected to take action to prevent it. The appellant therefore complied with the reasonable man tests and cannot be convicted of culpable homicide. Court says they should be careful to revert too quickly from could have foreseen to ought to have foreseen Evidence was given by experts who said that type of poisoning hardly ever happened and that one cannot be expected to know of the side effects of mercurial gas. Appellant also does not have the requisite subjective intention = his intention was to get the gold, not to kill his own family and friend. None of the judges found that the appellant could be held solely on the basis that his actions were unlawful.Judgment Majority finding that appellant cannot be convicted of culpable homicide as he had complied with the measurements for a reasonable man. A minority judgment found that being a miner, the appellant should have and could have known better and therefore must be charged for his lack of compliance with the reasonable man test.

Negligence

S v Van As 1976

Legal facts A young, relatively strong man got into an argument with an older fat man. The big man got very angry with the appellant and threatened him. The appellant responded by hitting the big man in the face. The man lost his balance and fell to the ground, hitting his head on the cement and later dying from this injury.Legal Question Can negligence be applied when the accuseds victim had died in abnormal circumstances?Ratio: Judge Rumpff

Court a quo Found the appellant guilty of culpable homicide due to his negligence for not foreseeing that the big man would hit his head and possibly die.Appellate Division Appellant could not say he lacked causation on the basis of novus actus because of the thin skull rule you take your victim as they come The causation requirement is met: there is no novus actus To determine whether the accused was negligent, the reasonable man test must be used. Would the reasonable man have foreseen the death of the deceased in such a way, and would the reasonable have taken steps to prevent this? The answer for these two questions has to be no. Therefore, the appellant has indeed complied with the reasonable man and cannot be held liable for the death of the deceased.Judgment Appeal is upheld and the conviction of culpable homicide is dismissed and replaced with a conviction of assault.

Common purpose

S v Safatsa and Others 1988 (1) SA 868 (A)

Legal facts Also known as the Sharpville Six case, appellants 1 to 8 were convicted of the murder of deputy major in Lekoa. A mob formed outside his house when it was suggested that service fees be raised, stones were thrown at the deceased house which eventually turned into petrol bombs. The deceaseds car was dragged into the street and set alight, and the deceased attempted to flee his burning house but was captured by some men and beaten with stones. He was then dragged to his burning car and set alight. Causation cannot be proved for the appellants, common purpose with no causal link needing to be proved. Court a quo convicted all accused, besides no. 5 and 6, with murder and therefore received the death penalty and were also convicted all the accused of subversion for all. Appeal against these convictions.Legal Question No causal link between each accused and the death of the deceased, can conviction nevertheless be found on the basis of the common purpose doctrine? And how is active association measured?Ratio Decidendi Court first looked at the active association of each accused in order to prove common purpose was relevant in each case. Evidence and eye witnesses were consulted. Accused no 1: grabbed deceased and tried to disarm him as he attempted to flee, also threw the first stone at the deceased when he was disarmed. Accused no 2: threw stones at the deceased as well as at his house Accused no 3: grabbed deceased and disarmed him Accused no 4: part of the crowd shouting we need to kill him and slapped another woman for not wanting to burn the deceased Accused no 5&6: part of the crowd, no proof from the State to prove they had intent Accused no 7: part of the crowd, assembled petrol bombs, set kitchen on fire, and helped push the car into the street. Accused no 8: also made petrol bombs, gave instructions for use, helped push the car It was proved that excluding accused 5 and 6, all others had sufficiently actively associated and therefore the action resulting in causation can be imputed to all accused, no need to prove causation for each accused separately All accused on trial (6 accused) had actively associated themselves with purpose which mob wish and did achieve to kill Dlamini. No need to have prior agreement to murder before the time. Had necessary fault (shared aim to kill) The conduct, of whoever caused death, is imputed to all accused Judgment Appeal is dismissed, charges are upheld.

Common purpose

S v Lungile and Another 1999

Legal facts A group of robbers attempted to rob a shop There was a shoot out in broad daylight and in front of a police station and an innocent lady was killed unsure whether bullet from robbers or policemen killed her The robbers were charged with robbery and murderLegal question Can Lungile, one of the robbers, be held liable for the murder of the lady?Ratio decidendi Attempt to raise various defences: Causation: police shooting was a novus actus intervenis court rejected Unlawfulness: necessity court held that the robbers had not been forced to participate and were voluntarily robbers (Bradbury case) He argued that he was not part of common purpose because he had left before the shooting had begun i.e. he had withdrawn when he ran away Court: Lungile did foresee the possibility of death when he agreed to commit robbery in broad daylight & participated in robbery (possibility that may need to subdue some victims) he had necessary mes rea in form of dolus eventualis Dissociated: left scene before shooting began dissociated? Factors: Time: last possible time Voluntary: when say police= No effective dissociationJudgement Lungile was held liable for the death of the lady

common purposeS v Dube 2010

Legal facts A group of bank robbers plan to drill into FNBs vault meticulously planned They bribed the security guard & policemen They were so confident that they decided not to take their guns with but the plan went wrong when the security guard went to other policemen and told about the plan Robber had a crowbar and policeman thought was a threat shot & killedLegal question Did other robbers foresee possibility one of them might be killed and can they be held liable for the death of the robber based on this knowledge/foreseeability?Ratio Facts: did not take weapons from which the court can infer that the other robbers did not foreseen that one of them might have died Judgement Appellants did not subjectively foresee (no dolus eventualis) = not guilty of murder charge

common purpose

S v Mzwempi 2011

Legal facts Attack between two clans resulting in several deaths , injuries, burnt huts. A few men were caught and charged with the collective actions of the clan The other clan had known there was a plan to attack and had attempted to escape Used common purpose doctrine to charged the accused with murder, attempted murder and arson. Appeal case: appeal against the convictions in the trial Court.Legal Question When applying the common purpose doctrine based on active association, should the court use the limited scope known as the Safatsa/Mgedezi method, or the wider scope, known as the Nzo mthod?Ratio Decidendi Evidence and eye witnesses were used to determine how the accused were involved (actively associated) with the common purpose. Accused no 4 is the only appellant: appellant was heard saying to his companions that they should not miss the 4am, and he was also heard talking to some of the hiding clansmen, he was seen carrying his shotgun but there is no proof of his actual shooting. The proof of active association is relatively weak and can only be used for a conviction if the scope for active association is wide (Nzo method) Court analyses the two methods and comes to the conclusion that the Nzo method is not very fair, it allows an accused to have the causal conduct imputed upon him when he has done very little to actively associate himself with the common purpose It is decided that each accused should be measured by his own conduct of active association, as stated in the Safatsa/Mgedezi method. Mgedezi sets out 5 criteria on which the accused must be measured: presence at the scene, aware of the attack, intention to commit to common cause, have performed an act of association, and have fault. The appellant in this case cannot be proven to have intent to commit the common cause and there is no evidence proving he had performed an act of association for this reason he cannot be held liable as part of the common purpose doctrine.Judgment Appeal is upheld and the charges against the appellant are dropped.

accomplice liabilityS v Williams en n Ander 1980

Legal facts Hard Livings gang were on train and had not plan do anything but the gang attack and kill another passenger on train 1st accused: kill the victim with a knife 2nd accused: grabbed victim around the neck and dragged him across coach 3rd accused: stabbed the victim with bottle neck 4th accused: stood and watched

Legal question 1st & 3rd = perpetrators 2nd & 4th = what is their liability?Ratio Convicted of accomplices but appealed Distinguished an accomplice from a perpetrator Perpetrator must satisfy the requirements of the definition of the crime, whereas accomplice is not a perpetrator (lacks unlawful conduct) Liability of the accomplice is based on his or her own unlawful conduct or fault Causal connection (legal or factual) between the accomplices assistance and the commission of the crime by the perpetrator(s) required

Authors: Snyman said 2nd should have been a perpetrator (causual link) if you assist in murder, you are a murderer Burchell: only factual not legal actually sentencing for what person did (pro fair labelling he held did not actually kill but made easier to kill more fair to label as accomplice rather than perpetrator) Accomplice: assists or further the crime did not commit crime himself but furthered the commission of the crime that another person committed

Judgement 2nd? He dragged accomplice to murder 4th? Not liable

Incomplete crime: attemptR v Schoombie 1945

Legal facts Schoombie was a potential arsonist Poured petrol over and under the door of shop He had flammable material and matches with him As about to set shop alight, police appeared Charged with attempted arsonLegal question Did S go far enough for it to be seen as an uncompleted attempt? At what stage does an accused go from the preparation stage to the commencement of consummation stage?Ratio

Court a quo Found that he had gone far enough to the commencement of consummation stage before he was interrupted Appeal against conviction stating he was still in a stage of preparation, no match had been lit, petrol had merely been poured.Appeal Arson? Arson is setting a fire unlawfully the accused had not done this thus he is not guilty of arson Attempted arson? Schoombie argued that he was only preparing and had not completed the attempt Court had to determine whether there were grounds for conviction based on legal evidence and whether accused had passed stage of preparation Courts have deliberately refused to lay down a ground for determining the line between preparation and commencement and as such it is a value judgment based on the facts of the case Inferred that accused mind was properly set up as fire dries quickly and so he would had to have lit shop on fire almost immediately and would have done so had the policeman not showed up. Fact that he had made up his mind to carry out his evil intention was a ground for conviction Decision Schoombie was found guilt of attempted arson (complete attempt) because he had an obvious purpose which the court inferred

Attempt R v Hlatwayo 1933 TPD 441

Legal facts Accused had placed caustic soda in her masters porridge in order to poison him She was well aware it was poison and had the necessary intent She told a fellow servant her plan and the fellow servant said she would go tell the master; at this point the accused removed the porridge from the stove and threw it out. The accused claims that she had withdrawn from the attempt and cannot be held liable, as she had not gone passed the preparation stage.Legal Question Can an accused be seen as withdrawing from the attempt after the commencement stage?Ratio Decidendi The accused had already placed the poison in the pot on the stove knowing that soon her employer would come down to take over with the food and serve the porridge. Were it not for the other servant, she would not have withdrawn from the conduct Accused had placed caustic soda in the pot and had therefore completed all she had set out to do and therefore had passed the stage of preparation. Appeal Court found that even voluntary withdrawal after the commencement of consummation stage does not qualify as a defence to attempt. Withdrawal after the commencement stage therefore does not exclude criminal liability.Judgment Appeal is dismissed; accused is rightly convicted of attempted murder.

attempt to commit the impossible

R v Davies 1956 (3) SA 52 (A)

Legal facts Appeal case against the conviction of attempting to abort an already dead foetus. Woman had already started taking injections and such in preparation for the actual abortion operation. Appellant claims that mere intent to commit a crime is not enough when it is absolutely impossible to achieve the aims (foetus already dead) Appellants had been convicted of one count of culpable homicide (for the woman who died during a procedure), and 2 counts of procuring abortion. The first appellant was a doctor and the second appellant was his assistant.Legal Question Can accused be found guilty of attempting to abort a pregnancy if the foetus is already dead? I.e. guilty of an attempt to commit the physically impossible?Ratio Decidendi In English and American law it is decided that attempting to perform an abortion on a woman who is not pregnant still constitutes as an attempt to commit the impossible. Conviction can only occur where the accused have already entered into the commencement of consummation stage Fact that the woman had already started taking the injections indicated that she had in fact entered into the commencement phase, as this already starts to abort the child. It is not inconceivable that the injections treatment had already caused the death of the foetus, though there is no definite proof of this. Court looks at case subjectively considers the accused evil state of mind and intention. Some aspects of the objective test must be considered too in order to determine that the crime is in fact a crime punishable in SA law.Judgment Appeal is dismissed Court found that there was intent The accused was found guilty of attempted abortion