Mens Rea in Statutory Offences

 The rule is that mens rea in the form of intention or negligence is a

prerequisite for all common law crimes.
 There are common law crimes derived from practice and they are different
because they are created by the legislature which imposes a punishment.
 The problem is that in certain instances the legislation may be silent on the
form of mens rea required, or not even require mens rea at all (stricti iuris)
 Where the statute is silent on mens rea the starting point is that mens rea is
presumed
 In other instances, the wording of the statute indicating mens rea indicates it
is required.
 Presumption: mens rea is an element of statutory offences (S v Arenstein)
 S v Arenstein: “The general rule is that actus non facit reum nisi mens sit
rea, and that in construing statutory prohibitions or injunctions the
Legislature is presumed, in the absence of clear and convincing indications to
the contrary, not to have intended innocent violations thereof to be
punishable.”
 South African law prefers that fault should be an element of liability in
statutory offences; this appears in a principle of statutory interpretation
 Statutes may be classified as follows:
1) Those requiring mens rea
2) Expressly excluding mens rea
3) Give no express indication as to whether or not mens rea is an element
of the offence.

1) STATUTES EXPRESSLY REQUIRING MENS REA

 The legislature uses words such as:
o Maliciously
o Knowingly
o Willfully
o Wantonly
o Corruptly
o Fraudulently
o Allows
o Permits
o Suffers
o Fails
o Evades
o False
o Cruelly
 The presumption may be rebutted if there are other considerations which
indicate the offence is one of strict liability.
 The requirement of fault and particular form of fault required may be made
by the legislature to appear expressly in the statute by the use of various
words such as “intentionally; maliciously; knowingly; negligently…”

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  The courts are prepared to interpret a statute which is silent on the matter of
fault as tacitly excluding the requirement of fault, although they are
reluctant to conclude an offence as being one of strict liability (S v Qumbella)
and in S v Arenstein the AD even set up the requirement of fault as a
presumption

CASE: R v Arenstein 1964, AD

 Accused was charged with the failure to report to his parole officer between
12 and 2pm on a certain day and this was at a time when the government was
cracking down. The accused claimed he forgot about the appointment so he
lacked mens rea
 Court held: By looking at the penalty imposed mens rea was required
therefore he was guilty of negligence. Within the context, mens rea could be
presumed to be required.
 “The general rule is that actus non facit reum nisi mens sit rea, and that in
construing statutory prohibitions or injunctions the Legislature is presumed,
in the absence of clear and convincing indications to the contrary, not to
have intended innocent violations thereof to be punishable.”
 These other considerations are:
1. Language or other context of the prohibition or injunction
2. Scope and object of the statute
3. Nature and extent of the penalty
4. Ease with which the prohibition or injunction could be evaded if
reliance could be placed on the absence of mens rea (S v Arenstein)
INTENTION
 Intention is a requirement for all common law crimes but it is not an element
of liability for certain statutory offences.
 Strict liability is an exceptional and constitutionally questionable form of
liability for statutory offences and traditionally the doctrine only applied it to
impose certain standards of conduct in the interest of the community at large
such as public welfare etc.
 In regard to statutory offences the general principle is that fault is a
necessary element for liability and although fault in the form of culpa is a
middle-course between intention-based liability and strict liability, the AD
indicates that the usual form of fault in statutory offences is intention (S v
Ngwenya).
 Jansen JA in S v Ngwenya held that instead of excluding fault and thus finding
strict liability, the court should take the middle-ground and find that fault is
required in the form of negligence, and this relates to standards of care for
persons, also:
 R v H: “Negligence may constitute sufficient proof of mens rea even in cases
where negligence is not the gist of the offence charged, if there was a duty
on the part of the person to be circumspect…”

 In S v Van Zyl the court (CPD) relied on a rule that intention would be
required for a statutory offence unless there is clear indication that

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 negligence is sufficient, however it is better to examine a legislative
objective independently rather than apply a rigid formula.
 The use of the word “intention” in a statute naturally indicates dolus as a
requirement, but this does not necessarily imply dolus eventualis is sufficient
for liability
 Certain offences created by statute have been held to require dolus directus
rather than dolus eventualis.
 There are analytical tools that have been developed by the courts which
guide us

2) STRICT LIABILITY (STRICTI IURIS) / STATUTES EXPRESSLY EXCLUDING MENS

REA
 Strict liability refers to no-fault liability, hence liability without proof of
intention or negligence.
 Most often stricti iuris is found in public affairs/interests legislation
 However, the normal principles of statutory interpretation would ordinarily
operate so as to require fault as an element of statutory offences.
 These cases are very rare.
 General rule: Penal statutes must be strictly construed since it serves to
favour the liberty of the subject, concept, in this context requires that penal
statutes should be interpreted so as to require fault as an element of a
statutory offence.
 The rise of modern urbanized and industrial society has created crucial need
for establishment and maintenance of certain standards of safety and hygiene
in commercial, industrial and social undertakings.
 Due to this it was reasoned that persons violating them should be subject to a
form of strict liability which takes no account of fault.
 Example: s29 of the Food, Drugs and Disinfectant Act provided: “on a charge
in connection with any food, drug or disinfectant, it would not be a defence
to prove that the accused did not act knowingly or willfully”. However, if the
accused proved that he did not act knowingly or willfully and he took due
care and reasonable means to ascertain the article was in accordance with
the provisions, this would be taken into consideration.
 It is an exception to the maxim that there can be no liability without fault
(actus non facit reum nisi mens sit rea) and at risk of being struck down for
being unconstitutional on grounds of violating the right to fair trial (S v
Coetzee); violating the presumption of innocence and violating the right to
equality.

CASE: Amalgamated Beverage Industries v Durban City Council 1994, AD

Public interest: food
 Facts: The appellant was a broker and distributor of soft drinks and
contravened certain by-laws: “no person who carries on business involving the
manufacture or preparation of food shall cause or permit any food or drink
which is not clean, wholesome, sound and free from any foreign object… for
purposes of sale”, in that it supplied a soft drink containing a bee. The

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 appellant’s argument was that 6 bottles were packed a second so they could
not control if such things fell into the bottle.
 Legal principle: Was mens rea a prerequisite for liability?
 Court held: The question of whether or not the absence of mens rea
constituted a defence to the charge depended on the nature of the
prohibition. There was no intention on part of the Legislature to dispense
with the mens rea as the use of the words “cause or permit” were more
consistent with the presence than absence of mens rea. The majority found
that mens rea in the form of negligence was required in this instance and the
appellant had been negligent in permitting bottles to pass checking officials
at a speed at which contamination could not be detected.
 The minority however favoured strict liability: Botha JA said it is unsafe to
draw general conclusions as to the meaning of words such as “cause” or
“permit” in any particular statutory provision. It is safe to consider the
context in which the words are used and in the present case the context of
the by-law requires the words “cause or permit” to be interpreted as
importing mens rea. Strict liability can occasionally produce undesirable
results but these results that come about in exceptional circumstances are
mild in comparison to the much greater potential harm that may eventuate
from holding that mens rea is an element of the offence and this depriving
the by-law of much of its effectiveness.

3) STATUTES GIVING NO EXPRESS INDICATION AS TO REQUIREMENT OF MENS REA

Common law offences – mens rea (intention) is required

Statutory offences – it varies depending on the whim of the
legislature:
1) Presume mens rea is a requirement if the statute is silent
2) All strict liability offences must explicitly state mens rea is not
required.

 A large majority of statutes give no indication regarding mens rea

 In the absence of clear and convincing indications to the contrary it is
presumed that the Legislature never intended innocent violations to be
punishable but rather fault be an element of criminal liability
 This is fortified by the appearance in statutes in question of fault words may
indicate some certainty that it is the legislature’s intention that innocent
violations of statute should not be punishable

Reverse Onus
 Despite deviation (R v Wallendorf) the law now concerning the onus of proof
in statutory offences is that the onus rests with the state even if the statute
is silent in respect of fault and the court nevertheless concludes that fault is
required (S v Jassat; S v Qumbella; S v De Blom)

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  Example: Drugs and Drug Trafficking Act: a dealer would procure a harsher
sentence than a consumer but the difficulty comes in distinguishing between
a dealer and a consumer. Therefore there is a presumption that dealers will
have a certain amount and the onus rests on the accused to show they are not
a dealer if they have that prescribed amount.
 There is a maxim that the “role of a judge is to interpret the law and not to
make it”
 The onus of proof is generally on the state but in some instances it rests on
the accused. Proving culpability rests on the state and this was extended for
statutory crimes (S v De Blom)

CASE: S v Coetzee 1997, CC

 Facts: The question was whether s332(5) of the Criminal Procedure Act was
in line with the Interim Constitution. The sections provided: “where an
offence has been committed, whether by performance of any act or by the
failure to perform any act, for which a corporate body is or was liable to
prosecution, any person who was at the time of commission of the offence, a
director or servant of the corporate body shall be deemed to be guilty of the
said offence unless it is proved that he did not take part in the commission
of the offence and that he could not have prevented it and shall be liable to
prosecution therefor, either with the corporate body or apart therefrom, and
shall on conviction be personally liable therefore”.
 The provision provided for reverse onus which in a way usurped the duty of
the prosecution to prove beyond reasonable doubt that an offence was
committed. It further infringed the right of an accused person to be
presumed innocent, as envisaged in s25(3) of the Constitution.
 Court held: Since this involved false representation mens rea was an element
and the Court held this provision failed to comply with the necessary
requirements of reasonableness, justifiability and necessity as required by
s33(1) of the Constitution, and it was as such unconstitutional (right to
administrative action).

CASE: R v H 1944, AD
 Facts: The appellant was convicted of having had illegal carnal intercourse
with a black woman but he contended he thought she was coloured.
 Court held: He was found guilty on the basis that mens rea was an essential
ingredient of the offence. Negligence may constitute sufficient proof of
mens rea even in cases where negligence is not the gist of the offence
charged, if there was a duty on the part of the person to be circumspect

CASE: S v Du Toit 1981, CPD

 It is difficult to prove the state of mind then it means more people can avail
themselves from that defence
 Where one is engaged in a sphere of activity, there must be knowledge of
the rules and regulations related to that sphere.

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CASE: S v Jassat 1965, AD
 Facts: The appellant was charged with a violation of a notice issued with
regard to his duty of reporting to the police station (link to R v Arenstein). He
was a medical doctor and had arranged with his mother and secretary to
remind him to report to the station at the relevant times. He also indicated
that on the day in question he failed to report he had a particularly busy
schedule so he ‘overlooked his duty’ to report to the station. The provincial
division dismissed his appeal from the magistrate but he appealed to the AD
 Court held: Steyn JA said the appellant had been negligent because he had
failed to report to the station.
 Rumpff JA: forgetting to comply with the order was negligent
 Willems JA: steps to prevent such an occurrence were insufficient and he
failed to adhere to a high degree of circumspection.
 The legislation aimed at protecting against a dangerous and negligent social
evil

CASE: S v Qumbella 1966, AD

 Facts: The appellant was given orders to burn whilst in prison not allowed to
look at them, even when outside prison was not allowed. But in a factor, he
did not know where he was, not supposed to be there. Claimed he did not
know.
 Issue: Whether or not he violated his orders?
 Court held: The basic principle is that actus non facit reum, nisi mens sit
rea. Current judicial thinking is recognizing more fully the scope and
operation of this fundamental rule of our law and although the Legislature
has the power to override it and make the duty to comply with its behests
thus making innocent violations punishable, such an infringement on
individual freedom should appear plainly so that “he who runs may read”.
 It was not unreasonable because he did try to get the orders but was not
given the opportunity to do so.

Quembela Jassat and Arenstein

Forgetfulness but reasonable To determine form of mens rea required,
look whether it
Had made attempts requires a high degree of circumspection as in
these cases

NEGLIGENCE
 Where a court decides an offence is not of strict liability the starting point is
to consider intention, however in exceptional situations mens rea in the form
of culpa is required.
 To diminish the harsh effect of the strict liability doctrine the courts have
been prepared to accept that an accused should escape liability if he can
adduce evidence that his contravention of the statute was not negligent.
 Determining the requirement of negligence avoids strict liability while giving
effect to the imposition of stricter standards of care in relation to public
welfare legislation.

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  R v H: “Negligence may constitute sufficient proof of mens rea even in cases
where negligence is not the gist of the offence charged, if there was a duty
on the part of the person to be circumspect…”
 Culpa may be the fault element of a statutory offence even though
negligence is not the gist of the offence.
 In determining whether culpa is the fault element it is unnecessary to search
for words indicating negligence but rather the enquiry is if the Legislature
required so high a degree of circumspection that despite the absence of
express provision it must have intended that mere omission to exercise that
degree of care which the law expects of a bonus paterfamilias, is
sufficient to render one guilty of the offence.

DETECTING FAULT OR STRICT LIABILITY OF AN OFFENCE

 To determine whether the Legislature contemplated negligence as the fault
element of an offence the courts have invoked the following considerations:

Common law offences – mens rea (intention) is required

Statutory offences – it varies depending on the whim of the
legislature:
1) Presume mens rea is a requirement if the statute is silent
2) All strict liability offences must explicitly state mens rea is not
required.

(1) Language
 It may serve to indicate negligence by use of words or phrases such as
“negligently” or “without due care”
 The language is to be interpreted to give effect to the intention of the
legislature by for example, considering the meaning given to the same words
used elsewhere in the statute

(2) Scope and Object

 In some instances the object will be to punish careless, reckless or negligent
behaviour and in such cases negligence is required.
 If the object is to create and impose duties of care and circumspection,
negligence will be sufficient
 If it creates a “public welfare offence”, an offence relating primarily to
industry or technology, such as mining operations, factories, public transport
etc, those offences must be interpreted as strict liability offences.

(3) Implementation

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  The fact implementation of a statute will be facilitated by negligence being
sufficient for liability rather than intention, indicates negligence is the
appropriate fault requirement

(4) Penalty
 Severity of the penalty imposed indicates negligence rather than intention
 Where a statute attracts severe punishment it will be interpreted as requiring
fault however if it attracts slight punishment such as “regulatory offences”
which are not morally reprehensible (ie TV licenses) a court may interpret it
as strict liability.

(5) Reasonableness
 The fact negligence involves an objective test of liability affects the question
of reasonableness or requiring negligence as the form of fault for particular
offences.
 This is because the application of an objective standard may result in
hardship so unjust as to make it unlikely that Parliament could have intended
any such result.
 Reasonableness of excluding culpability: Courts take into account the
inequitable results of the accused and the State

Also to be considered are those factors outlined by S v Arenstein:

1. Language or other context of the prohibition or injunction
2. Scope and object of the statute
3. Nature and extent of the penalty
4. Ease with which the prohibition or injunction could be evaded if
reliance could be placed on the absence of mens rea

If it has been determined that negligence was the required form of mens rea, to
test if the accused was negligent the test of Kruger v Coetzee must be applied.

APPLICATION
X moves to the suburbs and celebrates by slaughtering a cow. His neighbours call the
police and it eventuates that X has contravened by-laws for that area. X says he was
unaware of that law.
1) Look at the statute: does it require mens rea? Consider the factors
2) Weigh up these factors and apply And then draw a conclusion and use cases
3) Once it has been concluded that mens rea is a requirement THEN mistake of
law can be considered (because if there is no fault there can be no
consideration of mistake of law)
4) Apply for mistake of law: (S v De Blom; S v du Toit; S v Waglines; S v Rabson
etc)