Question 1
According
to Hoctor & Snyman
[1]
the
first and most basic criterion for criminal liability is that X must have acted
in some way. An
act
or
omission
is referred to as
"conduct." Acts are also known as "positive conduct,"
"commission," or
commissio,
whereas omissions are known as "negative conduct," "failure to
act," or
omissio.
[2]
The
term "act" does not include an "omission" in a strictly
valid sense. An "act" is the polar opposite of an
"omission." There is no overarching concept that encompasses both of
them. The two are as different as day and night, because doing something and
not doing something are polar opposites. The word "conduct" can be
used to refer to both of them, but it is only a formal, linguistic construct
for referring to both of them at the same time. On a material level, the
distinctions remain. This is supported by the fact that the legislation
frequently uses the terms "act or omission" or expressions like
"someone who commits an act or fails to commit an act" when referring
to this first element of criminal liability.
[3]
When
referring to the first basic element of liability, one must always use the
phrase "an act or an omission" to be technically correct. Because
this is a strained statement, and because omissions are more the exception than
the rule, writers like to use the word "act" in a broad meaning to
refer to both an act and an omission—in other words, as a synonym for
"conduct." Normally, this non-technical, non-literal use of the word
"act" does not cause misunderstanding. The reader can usually tell
whether the writer is using the word "act" loosely to refer to both
an act of omission and an act of active conduct based on the context of the
statement.
[4]
The
type of act indicated in the definitional elements is referred to as an
"act." A mere act in abstracto is not prohibited under criminal law.
To put it another way, there is no rule of law that says "you may not
act." A person performs some act or another at every conscious instant of
his or her life, such as walking, opening a door, or simply sitting and
watching out the window. It follows that the term "act" as used in
criminal law does not refer to the aforementioned events; rather, it refers to
only the type of act mentioned in the definition of the crime with which X is
charged, and more specifically, the type of act set out in the definitional
elements of the relevant crime. The law is unconcerned with any other
"act" that X might commit (i.e. an act other than the one mentioned
in the definitional elements). If X is charged with rape, she must commit
sexual penetration; if she is accused with arson, she must set fire to a
specific sort of structure.
[5]
The
concept of an "act" serves two crucial tasks in the formulation of
criminal culpability: first, it establishes liability, and second, it serves to
limit liability's scope.
First,
we'll look at the first function of an act. All other factors or requirements
for liability are traits or qualifications of an act, because the act is the
basic element in the building of the criminal liability system. It's
meaningless to look into whether the criteria of unlawfulness was met if it's
not obvious whether there was an act that complied with the definitional
elements, because only such an act can be illegal.
[6]
The
second purpose of an act's requirement is to define the outer limits of
criminal liability and therefore to limit its scope. The act must be stated in
such a way that it excludes from the scope of this research any conduct or
events that are unrelated to criminal law. Thoughts that have not yet been
turned into an act or conduct are examples of such conducts or events.
[7]
Thoughts not punishable:
It
is not unlawful to simply thinkor decide to do anything. Before there
could be any discussion of criminal liability, X had to start acting on her
thoughts. This does not imply that only the completed crime, with all the harm
done is punishable. As will be seen, attempting to commit a crime is also
punishable, but even then, some action is required that goes beyond just a
thought or a determination to act. As seen by the fact that incitement and
conspiracy are serious offenses, simply speaking words can be enough to commit
a crime.
[8]
Word Count:
742
Question 2
The theory of Adequate Causation
1.
Many
jurists have rejected attempts to identify only one person action as a cause of
a condition due to the vagueness of individualisation theories. Instead, they
establish a causal relationship based on generalizations that an ordinary
person may make about the relationship between a certain sort of event and a
specific type of result, as well as contracts between the usual and atypical
flow of events. The theory of adequate causation is a word used to separate
this generalisation theory from the individualisation theories.
[9]
2.
According
to this view, an act is a legal cause of a situation if it has the tendency to
bring about that type of situation in the usual run of events, based on human
experience. It must be typical of such an act to produce the desired outcome.
There is no "adequate relationship" between the act and the result if
the turn of events is atypical in the sense that the act has brought about an
unlikely, unpredictable, or uncontrollable result. The act cannot be said to
have caused the result if the turn of events is atypical in the sense that the
act has brought about an unlikely, unpredictable, or uncontrollable result. To
put it another way, if it can be said: "that comes from doing
so-and-so," the act is the cause of the situation. The theory is
reminiscent of the Anglo-American test, which requires determining if the result
matches to the "nature and probable consequences" or the
"reasonable consequences" of an act.
[10]
3.
To
strike a match means to do something that has the potential to start a fire in
normal circumstances. In the following circumstances, if X strikes a match and
uses the burning match to set a wooden cabin alight,one can confidently
assert that his behaviour was the cause of the cabin's burning down in the
following circumstances: he calls a dog. The dog leaps to his feet, startling a
cat. The terrified cat leaps through a cabin window, knocking over a lit candle
and setting the entire cabin on fire. If one applies the theory of adequate
causation to this situation, one must conclude that X's act was not the legal
cause of the cabin's burning down, because all X did was call a dog, and simply
calling a dog is not an act that, in the normal course of events, has the
tendency to cause a wooden cabin to burn down, according to human experience.
[11]
4.
All
factual circumstances ascertainable by a reasonable person should be taken into
account when determining whether there is an "adequate relationship"
between the act and the result. If X gives a light slap on the head to Y, who
has a thin skull, and Y dies, the fact that Y has a thin skull should be taken
into account when applying the test. As a result, the question is not
"does a slight hit to another's head have the potential to cause
death?" but "does a slight blow to the head of someone with a thin
skull have the potential to cause death?" Because the answer to the latter
question is yes, there is a causal relationship in this situation, according to
the theory of adequate causation.
[12]
5.
This
isn't to say that X's specific knowledge isn't taken into account when
evaluating what a likely outcome would be in the given circumstances. The
criterion is the knowledge of a normal, rational individual who also has the
additional knowledge that X may have. As a result, if X has more information
about the nature or effect of the act than an objective observer, that
information must be considered. Furthermore, while determining what a likely
outcome would be, the entirety of human knowledge must be considered, even
knowledge that only a specialist in a certain field might possess. Even
information that becomes available only after the occurrence of the events in
question may be considered.
[13]
6.
When
implementing the theory of adequate causation, one employs an objective
prognostic test, which entails looking ahead from the moment of the act and
determining if that type of outcome was to be expected. The test has the
advantage of limiting the scope of possible liability by considering man's
ability to direct or steer the chain of causation, effectively eliminating the
role of chance.
[14]
Legal causation
1.
The
mere fact that X's act is a factual cause of the forbidden situation is
insufficient evidence for a court to conclude that the act and the situation
are causally linked (result). Before the court can determine whether there is a
causal link, it must be obvious that the act is both a factual and legal cause
of the circumstance. This means that the act must qualify as a cause of the
forbidden result not just according to natural science or common sense, but
also according to the legal criteria. The legal criteria are more stringent than
those used to determine factual causation; they are based on normative value
judgments or policy concerns, such as whether it is reasonable or just to
consider the act as a cause of the prohibited circumstance. A legal cause of
the circumstance can only be an act that is a factual cause of the situation.
[15]
The criterion for legal causation
2.
In
Mokgethi
[16]
,
the Appellate Division concluded that it is incorrect to select only one of
these theories as the correct one to apply in all circumstances, thereby
excluding all alternative theories of legal causation from consideration.
According to the court, a flexible criterion should be used: the overriding
consideration in determining legal causation is the demands of what is fair and
just; however, in attempting to determine what is a fair and just conclusion, a
court may consider various theories of legal causation, such as
individualisation theories, theory of adequate causation, and the absence of a
novus actus interveniens, and use them
as guides in reaching a conclusion.
[17]
Word count: 982
Question 3
Automatism
i.
A
further significant instance in which the law assumes there is no act since
what is done is done unwillingly is when a person acts mechanically. Reflex
movements like heart palpitations or sneezing fits, somnambulism, muscle
motions like an arm movement while a person is asleep or unconscious or having a
nightmare, an epileptic fit, and the so-called "black out" are all
examples of mechanical behaviour. Because the point is not what X remembers of
the events, but whether she behaved voluntarily at the essential moment, mere
forgetfulness after the act, that is, the inability to remember what happened
at the critical moment, is insufficient to automatism.
[18]
ii.
Because
the muscle motions are more similar of the mechanical behaviour of an automaton
than of the responsible conduct of a human person whose body movements are
under the direction of her will, this form of behaviour is loosely referred to
as "automatism." It makes no difference how the behaviour is
portrayed; the question is simply whether it was voluntary, that is, whether
the individual involved was capable of submitting her bodily motions or
behaviour under the control of her will.
[19]
Distinction between automatism due to
involuntary conduct and conscious behaviour attributable to mental illness
i.
It's
important to distinguish between automatism caused by automatic behaviour and
unconscious behaviour caused by mental illness. In the first scenario, X, who
is mentally sound, acts involuntarily for a brief period of time due to an
epileptic fit, for example. In the latter case, X's unconscious behaviour can
be attributed to a mental disorder, or mental illness (insanity).
[20]
ii.
The
former is referred to as "sane automatism," while the latter is
referred to as "insane automatism" by the courts. This language can
cause confusion since it fails to emphasize that the defence known as
"insane automatism" is nothing more than a mental illness defence
(insanity). It might be argued that, for clarity's sake, the terms "sane
automatism" and "insane automatism" should be avoided, and the
term "automatism" should be reserved for involuntary behaviour not
caused by a mental illness. The Supreme Court of Appeal has recently avoided
the terms "sane automatism" and "insane automatism" on
several occasions, preferring to use the phrase "automatism not
attributable to mental pathology" instead. In the Henry case, the term
"psychogenic automatism" was also used by the court to refer to
"sane automatism". What was once known as "insane
automatism" is now better known as "pathological loss of
consciousness." Having established this argument, it is clear that the
phrases "sane automatism" and "insane automatism" continue
to be used as useful terms of art in our courts. The distinction between loss
of consciousness caused by mental illness and loss of consciousness caused by
involuntary action is critical.
[21]
Practical importance of above
distinction
i.
The
distinction between automatism caused by involuntary conduct and unconscious
conduct caused by mental illness is crucial for two reasons:
1.
The placing of onus of
proof
dependson
the defence raised by X. In cases of automatism resulting from involuntary
conduct, the state bears the burden of proving that the act was voluntary,
despite the fact that the state is aided by natural interference, which holds
that in the absence of exceptional circumstances, sane people who engage in
conduct that would normally result in criminal liability do so consciously and
voluntarily. In circumstances of unconscious behaviour due to mental illness,
the defence is mental disease, and the burden of proof is on X to show that she
was suffering from mental illness.
[22]
In
R v Schoonwinkel
[23]
,
the accused was charged with culpable homicide for recklessly driving a motor
vehicle into another vehicle, killing a passenger. Although the accused had
epilepsy, he had only ever had two small seizures in the months leading up to
the crash. The accused had an epileptic fit at the moment of the collision,
according to the defence, and his mind was blank. The court decided that there
was no basis for concluding that the accused should have expected a seizure
that would result in the death of a person.
As
a result, the accused was found not guilty of culpable homicide since there was
no evidence that he should have been aware of the danger posed by possible
epileptic fits.
2.
The order in whichthe
court must make
if
X's defence is upheld is determined by the defence that X successfully raises.
If X's defence of automatism owing to involuntary conduct is successful, he
will leave the court as a free person. If X successfully defends herself by
relying on unconscious behaviour caused by mental illness, she must be dealt
with according to the guidelines governing mental illness defences: According
to Section 78(6) of the Criminal Procedure Act, a court must declare X not
guilty in such a circumstance, but the court has the power to order that X be
committed to a psychiatric facility, in which case X does not leave the court
as a free person.
[24]
Word
count: 878
Bibliography/Referencing
List
Cases
S
v Mokgethi en Andere1990 (1) SA 32 (A)
R
v Schoonwinkel 1953 (3) SA 136 (C)
Books
Hoctor,
SV & Snyman, CR.
Snyman’s Criminal
Law
7th
ed (2020) LexisNexis: Cape Town
[1]
Hoctor, SV.
Snyman’s Criminal
Law
7th
ed. 2020 43-45
[2]
Hoctor, SV
Snyman’s Criminal
Law
43-45.
[3]
Hoctor, SV Snyman’s Criminal Law 43-45.
[4]
Hoctor, SV Snyman’s Criminal Law 43-45.
[5]
Hoctor, SV Snyman’s Criminal Law 43-45.
[6]
Hoctor, SV Snyman’s Criminal Law 43-45.
[7]
Hoctor, SV Snyman’s Criminal Law 43-45.
[8]
Hoctor, SV Snyman’s Criminal Law 43-45.
[9]
Hoctor, SV Snyman’s Criminal Law 69-72
[10]
Hoctor, SV Snyman’s Criminal Law 69-72
[11]
Hoctor, SV Snyman’s Criminal Law 69-72
[12]
Hoctor, SV Snyman’s Criminal Law 69-72
[13]
Hoctor, SV Snyman’s Criminal Law 69-72
[14]
Hoctor, SV Snyman’s Criminal Law 69-72
[15]
Hoctor, SV Snyman’s Criminal Law 69-72
[16]
S v MOKGETHI EN ANDERE 1990 (1) SA 32 (A)
[17]
Hoctor, SV Snyman’s Criminal Law 69-72
[18]
Hoctor, SV Snyman’s Criminal Law 46-47
[19]
Hoctor, SV Snyman’s Criminal Law 46-47
[20]
Hoctor, SV Snyman’s Criminal Law 46-48
[21]
Hoctor, SV Snyman’s Criminal Law 46-48
[22]
Hoctor, SV Snyman’s Criminal Law 46-48
[23]
R v SCHOONWINKEL 1953 (3) SA 136 (C)
[24]
Hoctor, SV Snyman’s Criminal Law 46-48